Appeal from Lake Superior Court, The Honorable James Letsinger, Judge, Cause No. 2CR-22-284-95
Givan, J., Shepard, C.j., Pivarnik, J., concur. DeBruler, Dickson, JJ., concur in result without separate opinion.
A jury trial resulted in the conviction of appellant of Murder and he was found to be an habitual offender. He received an enhanced sentence of seventy (70) years.
The facts are: On February 1, 1984, appellant was arrested for the unauthorized control of a vehicle. While being questioned at the Newton County Jail, he told police that he committed a murder in Whiting, Indiana. After advising appellant of his rights, police tape-recorded his confession of murdering a prostitute in his apartment. Appellant stated that when he and the prostitute reached his apartment she pulled out a razor and said she planned to rob him. He struck her then choked her for approximately ten to fifteen minutes until she stopped breathing. He placed her body in a duffel bag and put her in his attic.
In his confession, appellant said he had smoked a few joints, snorted some THC and consumed a twelve-pack of beer before he picked up the victim.
Police found a body in appellant's attic which matched the description of the victim given by appellant. An autopsy revealed that the victim's death was caused by manual strangulation.
Appellant argues that the trial court erroneously neglected to instruct the jury on the defense of voluntary intoxication. Appellant did not request such an instruction nor did he raise the lack of instruction in his motion to correct error. He now asserts that fundamental error occurred by the trial court's failure to sua sponte instruct the jury on voluntary intoxication.
A party cannot complain of incomplete or omitted instructions when he has failed to tender any instructions on that issue. Law v. State (1980), 273 Ind. 624, 406 N.E.2d 1185. Also, error not properly preserved during trial and by the motion to correct error is not available on appeal. Bond v. State (1986), Ind., 489 N.E.2d 504.
Appellant asserts that this issue should not be deemed as waived despite his failure to comply with the procedural requirements because it is fundamental error.
Fundamental error is error that not corrected would deny a defendant fundamental due process. Burkes v. State (1983), Ind., 445 N.E.2d 983. This Court will review an issue not properly raised and preserved only when a blatant violation of basic and elementary principles has occurred, and the harm or potential for harm cannot be denied. Id.
Assuming arguendo that appellant had tendered an instruction on the voluntary intoxication defense, its refusal would be error only if the evidence would have created a reasonable doubt in the mind of a rational trier of fact that the accused had the requisite intent. Gibson v. State (1987), Ind., 516 N.E.2d 31.
Appellant asserts that because he told police and a doctor that he was high on drugs at the time of the incident, there is substantial evidence of his intoxication.
We stated in Terry v. State (1984), Ind., 465 N.E.2d 1085 that a defendant should not be relieved of responsibility when he was able to devise a plan, operate equipment, instruct the behavior of ...