Appeal from the Madison County Circuit Court, No. 48C03-1207-FA-1240. The Honorable Thomas Newman, Jr., Judge.
On Petition to Transfer from the Indiana Court of Appeals, No. 48A02-1303-CR-229.
ATTORNEY FOR APPELLANT: John B. Steinhart, Lafayette, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Eric P. Babbs, Deputy Attorneys General, Indianapolis, Indiana.
David, Justice. Rush, C.J., Dickson, Rucker, and Massa, J.J., concur.
A jury instruction setting forth the elements of attempted murder must inform the jury that the State must prove beyond a reasonable doubt that the defendant, with specific intent to kill the victim, engaged in conduct constituting a substantial step toward such killing. Spradlin v. State, 569 N.E.2d 948, 950 (Ind. 1991). Similarly, when attempted murder is premised on accomplice liability, the jury is required to be instructed that the State must prove beyond a reasonable doubt that the defendant acted with specific intent to kill. Hopkins v. State, 759 N.E.2d 633, 637 (Ind. 2001) (citing Bethel v. State, 730 N.E.2d 1242, 1246 (Ind. 2000)). But in this case, although the trial court properly instructed Ruben Rosales's jury on the elements of attempted murder, it failed to inform them that the State had to establish beyond a reasonable doubt that Rosales acted with specific intent to kill when he knowingly or intentionally aided, induced, or caused another person to attempt murder. This error was compounded during closing arguments when the State repeatedly insisted that specific intent to kill was not required for accomplice liability to attempted murder. Subsequently, the jury found Rosales guilty of attempted murder, but the general verdict form made it impossible to determine whether direct or accomplice liability formed the basis of their collective decision.
On appeal, Rosales argues that the trial court committed fundamental error by giving
an instruction permitting the jury to convict him of attempted murder as an accomplice without the specific intent to kill. Our careful review of our case law leads us to conclude that under the circumstances of this case Rosales is correct.
Facts and Procedural History
In June of 2012, eighteen-year-old Rosales was a member of the Latin Kings gang in Anderson, Indiana. Fifteen-year-old Sergio Torres was affiliated with rival gang Serrano 13, which had been harassing Rosales's girlfriend by making threats against her and vandalizing her house. On the afternoon of June 27, 2012, Torres was walking down an alley when a van carrying Rosales--who is Hispanic--and Donovan Ball--who is Caucasian and was a close associate of the Latin Kings--pulled in behind him. Ball, unarmed, exited the van. As Torres faced Ball, he felt a sharp blow to his head and lost consciousness. When he regained consciousness, he observed Ball and Rosales running back to the van, which then sped away.
Nearby witness Melamekia Watson would later testify that she observed a Caucasian man and a Latino man carrying a metal baseball bat exit the van and run down the alley. According to Watson, the same men ran out of the alley " like they [were] on a mission" and got back into the van. (Tr. at 268-69.) The Latino man was still carrying the bat.
When police arrived at the scene, Torres was bleeding profusely from lacerations on his head and slipping in and out of consciousness. He was transported to an Anderson hospital, where Nurse Cheryl Reese and Doctor Myron Bielski observed what they considered to be life-threatening injuries: multiple skull fractures, a subdural hematoma, and bleeding of the brain. Torres underwent brain surgery but continued to suffer headaches as a result of the trauma.
The following day, Rosales, appearing nervous, told his aunt Michelle Rosales that he needed to leave for Chicago because he " didn't want to see himself get in anymore trouble." (Tr. at 325-26.) She drove him to an Indianapolis bus station and purchased a ticket for him. When the cashier asked who was traveling, Ruben Rosales gave a fake name.
On her way home, Michelle Rosales called a mutual acquaintance and inquired about the cause of her nephew's behavior. After the acquaintance informed her of the attack, she called police, who arrested Ruben Rosales at the bus station.
The State then charged Rosales with class A felony attempted murder and class D felony criminal gang participation. At his jury trial and during final instructions, the trial court instructed the jury on attempted murder: " the crime of attempted murder is defined as follows: a person attempts to commit a murder when, acting with the specific intent to kill another person, he engages in conduct that constitutes a substantial step toward kill[ing] that person." (Tr. at 557.) Though Rosales was not charged as an accomplice to attempted murder and his attempted murder charge was not explicitly premised on a theory of accomplice liability, the trial court also instructed the jury on accomplice liability as follows: " ...