Attorneys for Appellee
Attorney General of Indiana
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
December 20, 2001
Soon after Martinez and McCarty returned home, Defendant and Edward showed up.
Defendant asked Martinez to hold onto his gun for him. About fifteen
minutes later, Defendant and Edward returned. When Martinez returned Defendants gun, Defendant
locked the door and then pointed the gun at Martinez and ordered Martinez
and McCarty into the basement and told them to take their clothes off.
McCarty resisted and Defendant hit her on the head with the gun.
Once in the basement, Defendant took $4,500 from Martinez and $40 from
McCarty. Defendant said that that was not enough, gave Edward the gun,
and went upstairs to look for drugs and more money. Defendant found
approximately two or three pounds of marijuana upstairs. Defendant yelled, Wheres it
at?, as he searched the house.
While Defendant was still upstairs, Edward shot Martinez in the shoulder as Martinez
and McCarty both pleaded for their lives. Edward was about three feet
away and the bullet entered Martinezs shoulder, ricocheted into his neck, hit his
carotid artery, and exited through his ear. Martinez lost consciousness. McCarty
assumed that Martinez was dead, and testified that she thought Edward had blown
the back of Martinezs head off. Martinez survived, but was in an
intensive care unit for thirteen days as a result of being shot.
After Edward shot Martinez, Defendant returned to the basement and took the gun
from Edward. Defendant then shot McCarty. As Defendant shot her, McCarty
moved around so that he wouldnt hit her in the head. When
she fell to the ground she pretended to be dead. Defendant and
Edward went upstairs and left the house. Martinez regained consciousness and they
were able to call for help. McCarty had been shot in the
chest, and suffered a severed spinal cord, punctured lung, paralysis in her arm,
and is now confined to a wheelchair.
Defendant was convicted of two counts of Attempted Murder,
See footnote two counts of ro
two counts of criminal confinement, See footnote and one count of carrying a handgun
without a license.See footnote Defendant then pled guilty to being a habitual offender.
The trial court sentenced Defendant to 50 years incarceration for Count I,
the attempted murder of McCarty. The trial court also enhanced the sentence
by 20 years under the habitual offender statute. The trial court sentenced
Defendant to 50 years for count II, the attempted murder of Martinez; 20
ncarceration for counts III and IV, robbery; and three years incarceration each
for the criminal confinement convictions. The trial court ordered all the terms
to run consecutively for total executed time of 166 years.
Because of the stringent penalties for attempted murder and the ambiguity often i
in its proof, this court has singled out attempted murder for special treatment.
See Richeson vs. State, 704 N.E.2d 1008 (Ind. 1998). First, a
conviction for attempted murder requires proof of specific intent to kill. Spradlin
v. State, 569 N.E.2d 948, 950 (Ind.1991). And where, as here, the
State seeks a conviction for attempted murder on an accomplice liability theory, we
have held that its burden of proof is as follows:
(1) that the accomplice, acting with the specific intent to kill, took a
substantial step toward the commission of murder, and
(2) that the defendant, acting with the specific intent that the killing o
knowingly or intentionally aided, induced, or caused the accomplice to commit the crime
of attempted murder.
Bethel v. State, 730 N.E.2d 1242, 1246 (Ind. 2000).
(R. at 132.)
In the past, we have found fundamental error in instructing juries on the
equired to convict of attempted murder. See Bethel v. State, 730
N.E.2d 1242, 1245 (Ind. 2000); Williams v. State, 737 N.E.2d 734, 740 (Ind.
2000). In other cases, we have found error that did not rise
to the level of fundamental error. See Ramsey v. State, 723, N.E.2d
869, 872-73 (Ind. 2000); Swallows v. State, 674 N.E.2d 1317, 1318 (Ind. 1996);
Jackson v. State, 575 N.E.2d 617, 621 (Ind. 1991). One particular circumstance
where we have found a Spradlin error not to constitute fundamental error is
where the Defendants intent was not at issue. In Swallows, for example,
we found that the trial court had not committed fundamental error because the
defense relied on identity, and The intent of the Defendant was not in
issue. See Swallows, 674 N.E.2d at 1318.
Here, we find that the trial court clearly erred by failing to instruct the jury on the specific intent necessary to establish accomplice liability for attempted murder. Final instructions 10 and 11 informed the jury of the state of mind that generally is required to convict a defendant of a crime based on accomplice liability. But these instructions did not inform the jury that in order to convict, it was required to find that Defendant intended to kill Martinez when he took the steps that helped Edward to kill him.
Adding to the strength of Defendants claim is the fact that his intent to kill Martinez was clearly at issue. The Attorney General makes a very strong argument that Defendant possessed the requisite intent. He points out that Defendant and Edward seemed to have operated according to an agreed upon plan. McCarty testified that when Defendant returned to the basement, he did not seem mad at Edward for shooting Martinez. Indeed, when Defendant took the gun from Edward and pointed it at McCarty, he grinned at her as he pulled the trigger.
We agree with the State that it presented sufficient evidence at trial from which a jury could conclude that Defendant was guilty of attempted murder Defendant participated in ordering both victims to the basement, ordering them to strip, and taking their cash. He handed his brother a handgun while he went upstairs to ransack the house for drugs and/or money. His brother then, without any new conduct or provocation from either victim, simply pointed the handgun at Martinezs head and shot him. When Defendant returned to the basement, where Martinez was lying on the floor apparently dead, his brother handed him back the handgun, and Defendant proceeded without saying anything, and without any new conduct or provocation from McCarty, to fire the handgun at her face from three feet away. These circumstances are sufficient to permit a jury to infer beyond a reasonable doubt that Defendant intended that his brother kill Martinez, and aided him in the crime.
But because Defendant's intent to kill Martinez was squarely at issue and because the jury was not properly instructed that it was required to find beyond a reasonable doubt that Defendant possessed the specific intent to kill Martinez, we are unable to affirm the trial court's judgment on this count. We conclude that, at minimum, the probable impact on the jury on every material element of the crime of the trial courts failure to instruct was not sufficiently minor as not to adversely affect Defendant's substantial rights. See Ind. Trial Rule 61; Fleener vs. State, 656 N.E.2d 1140, 1141-42 (Ind. 1995).
Indianas Double Jeopardy Clause ... prevent[s] the State from being able to proceed
against a person twice for the same criminal transgression. Richardson v. State,
717 N.E.2d 32, 49 (Ind. 1999). Indiana Code § 35-38-1-6 reinforces this
rule, forbidding a trial court from sentencing a defendant for an offense and
a lesser-included offense charged in separate counts. The code directs that judgment
and sentence may not be entered against the defendant for the included offense.
Here, defendants convictions for confinement and his convictions for robbery were separate acts.
Robbery consists of taking property by using or threatening the use of
force or by putting any person in fear. See Ind. Code §
35-42-5-1 (1998). Criminal confinement consists of confining a person or removing them
by fraud, enticement, force, or threat of force from one place to another.
See Ind. Code § 35-42-3-3 (1998).
Confinement is not a lesser-included offense of robbery. Furthermore, where the confinement of a victim is greater than that which is inherently necessary to rob them, the confinement, while part of the robbery, is also a separate criminal transgression. See footnote See Harris v. State, 716 N.E.2d 406, 412 (Ind. 1999) (citing Brown v. State, 671 N.E.2d 401, 410 (Ind.1996)). Here, Defendants confinement of his victims extended well beyond what was necessary to rob them; Defendant and Edward forced his victims to the basement at gunpoint. Defendant took $4,500 from Martinez and $40 from McCarty and then went upstairs to search the house. It was not necessary to force the victims into the basement to rob them. After initially taking the money, it was not necessary to force them to stay in the basement as Defendant searched the house. Both Defendants removal of Martinez and McCarty to the basement and the confinement after robbing them were separate criminal transgressions from the robberies themselves.
To succeed in his claim of double jeopardy under the
Richardson actual evidence
test, the defendant must demonstrate a reasonable possibility that the jury used the
same evidentiary facts to establish the essential elements of both robbery and confinement.
See Richardson, 717 N.E.2d at 53. Obviously, the evidence used to
establish the confinement could not have also proved robbery because it would not
have proven the taking element. More difficult is whether the evidence proving the
essential elements of robbery (knowingly; took property; by fear or threatened use of
force) may have been used also to establish the essential elements of criminal
confinement (knowingly; confine; without consent).
Under the instruction and the evidence presented, the jury theoretically could have found
that the offense of criminal confinement was committed either (1) when Martinez and
McCarty were forced at gunpoint to go from the kitchen to the basement,
(2) when they were forced at gunpoint to remove their clothes, (3) when
they were forced at gunpoint to hand over money, or (4) when they
were thereafter confined in the basement while the house was being searched.
It is only the third of these three events (where the same evidentiary
facts establish both robbery and criminal confinement) that implicates the
Richardson actual evidence
However, double jeopardy under this test will be found only when it is
reasonably possible that the jury used the same evidence to establish two offenses,
not when that possibility is speculative or remote. See Griffin v. State,
717 N.E.2d 73, 89 (Ind. 1999). This Court has determined the possibility
to be remote and speculative and therefore not reasonable when finding no sufficiently
substantial likelihood that the jury used the same evidentiary facts to establish the
essential elements of two offenses. See Long v. State, 743 N.E.2d 253,
261 (Ind. 2001); Redman.v. State, 743 N.E.2d 263, 268 (Ind. 2001).
Considering the protracted nature of the criminal episode, and particularly the co
of criminal confinement as to each victim when they were initially ordered
at gunpoint into the basement, we find no sufficient substantial likelihood that the
jury based its determination of guilt on the confinement counts upon the evidence
of the incidental confinement at the moment of the robbery.