APPEAL FROM MADISON SUPERIOR COURT, DIVISION III, The Honorable Thomas Newman, Jr., Judge, Cause No. 3SCR-84-110.
DeBRULER, J., Shepard, C.j., Dickson, J., concur. Givan, J. Dissents with separate opinion in which Pivarnik, J. concurs.
This is a direct appeal following conviction in a trial by jury of the offenses of attempted murder and class C battery. Appellant was sentenced to consecutive fifty and eight year terms of imprisonment, those sentences to also run consecutively to the time appellant was already serving.
There are five issues presented for review: (1) whether the trial court erred by failing to instruct the jury that specific intent to commit murder is an element of attempted murder; (2) whether the trial court erred by excluding defense evidence; (3) whether the trial court erred by not permitting the defense to recall State's witness officer Abel; (4) whether the trial court erred by permitting the State to introduce incident reports from Pendleton Reformatory; and (5) whether the trial court erred by not permitting the defense to recall Byron Alston as a surrebuttal witness.
These are the facts pertinent to this appeal. Appellant was an inmate at the reformatory in Pendleton, Indiana. On Nov. 5, 1984, correction officers attempted to transfer appellant from J cell house to administrative segregation. The standard procedure for such a move is to go to the cell door and handcuff the prisoner and then another officer mechanically releases the door from a remote location. When appellant was ordered to pack his belongings for the move he refused. The door to his cell was then mistakenly released. Appellant left the cell, armed himself with a knife, and was eventually cornered by correction officers.
In restraining appellant, officer Stonebarger was cut on the hand by appellant and officer Abel was stabbed in the back by appellant. Appellant asserts that he had no intent to kill the officers but had been informed by other inmates that the officers intended to physically assault him during the transfer. He claims he obtained the knife for his own self preservation and that the stabbing was accidental and a result of his being sprayed with mace and losing his balance.
Appellant urges that the trial court committed fundamental error by failing to instruct the jury that specific intent to kill is a requisite element of the crime of attempted murder. He is correct.
The trial court gave the following instruction to the jury:
"To sustain the charge of attempted murder, the State must prove the following propositions:
First: That the Defendant knowingly engaged in conduct against DAVID ABEL.
Second: That the Defendant's conduct against DAVID ABEL constituted a substantial step toward the commission of the crime of murder.
This instruction is defective in that it fails to inform the jury that the substantial step toward the crime of murder must have been accompanied by the state of mind which is required for the crime of murder. In Smith v. State (1984), Ind., 459 N.E.2d 355 we declared the giving of this instruction to be fundamental error. See also Santana v. State (1986), Ind., 486 N.E.2d 1010. The error in the instruction creates a serious risk of wrongful conviction. This instruction purports to set out the complete burden of the prosecution. It is an instruction, which when given at a trial, creates a moment of focus and special attention. The Judge takes special care in reading it loudly and distinctly. The jury perceives its special and crucial character. Armed with the information in this instruction, the jury could rationally deem itself authorized to convict because it was convinced beyond a reasonable doubt that the accused deliberately engaged in cooperative conduct, in a series of developing events, which culminated in an enterprise carrying the death risk, even though there could have been no appreciation of that risk at the time of the cooperative conduct. Obviously, such a conviction would be a gross miscarriage of Justice and unintended by the legislature in establishing the crime of attempted murder. The requirements of Smith and ...