attempted murder instruction in Indiana

2020He maintains that, because the Indiana Pattern Jury Instruction for attempted murder uses the language “specific intent to kill,” it was fundamental error to not use such language. [16] In Spradlin v. State, 569 N.E.2d 948 (Ind. 1991), the Indiana Supreme Court determined that an attempted murder instruction “which purports to set forth the elements which must be proven in order to convict of the crime of attempted murder must inform the jury that the State must prove beyond a reasonable doubt that the defendant, with the intent to kill the victim, engaged in conduct which was a substantial st

2020He maintains that, because the Indiana Pattern Jury Instruction for attempted murder uses the language “specific intent to kill,” it was fundamental error to not use such language. [16] In Spradlin v. State, 569 N.E.2d 948 (Ind. 1991), the Indiana Supreme Court determined that an attempted murder instruction “which purports to set forth the elements which must be proven in order to convict of the crime of attempted murder must inform the jury that the State must prove beyond a reasonable doubt that the defendant, with the intent to kill the victim, engaged in conduct which was a substantial st

2014In Ramsey v. State, 723 N.E.2d 869, 871 (Ind. 2000), our supreme court addressed an attempted murder instruction that included a “knowingly” mens rea but also stated that the defendant had to have a “specific intent to kill.” The court held that, although the trial court should not have included the word “knowingly” in the instruction, the instruction properly mentioned the “specific intent to kill” both as an element in the charging instrument and as an element that the State was required to prove beyond a reasonable doubt.

2000While there may have been confusion initially, in 1991 our Supreme Court held that an attempted murder instruction “must include the required mens rea of specific intent to kill.” Ramsey, supra at 871 (citing Spradlin, supra, 569 N.E.2d at 950 ).

2003On appeal, this court acknowledged that it had been incorrect to deny the defendant’s Spradlin claim on direct appeal, but “it nevertheless held that [the defendant] was not entitled to relief because, as an accomplice, [the defendant’s] ‘intent was not an issue,’ ... and so the Spradlin rule was not implicated.” Id. *840 Our supreme court granted transfer and agreed that the denial of the defendant’s Spradlin claim on direct appeal was incorrect because the attempted murder instruction misinformed the jury as to the appropriate mens rea.

2002The "inherent ambiguity in attempted murder prosecutions and the need to instruct juries precisely as to the correct level of culpability," Williams v. State, 737 N.E.2d 734, 740 (Ind.2000), convince us that the improper use of the word "knowingly" in an attempted murder instruction should, with few exceptions, constitute fundamental error. 7 However, the same blanket conclusion of fundamental error cannot be reached in a case of child molest by deviate sexual conduct.

1996The State argues that the post-conviction court correctly concluded that the attempted murder instruction given in this case is analogous to the one allowed in Jackson v. State, 575 N.E.2d 617 (Ind.1991).

1994In Jackson v. State (1991), Ind., 575 N.E.2d 617 , the supreme court interpreted its decision in Spradlin and held that an attempted murder instruction which used the phrase "attempting to kill" rather than "intending to kill" was a valid attempted murder instruction.

2003To that end, our supreme court affirmed several attempted murder cases in the 1980's where instructions were given referring to a "knowing" mens rea and not using the precise words "specific intent to kill." Thus, in Santana v. State, 486 N.E.2d 1010 (Ind.1986), our supreme court approved the following attempted murder instruction: To convict the defendant of the crime of attempted murder, the State must have proved the following elements: 1. the defendant knowingly or intentionally 2. took a substantial step to accomplish 3. a knowing or intentional killing of another human being.

2003Id. at 1011 .

2002See Metcalfe v. State, 715 N.E.2d 1236, 1237 (Ind.1999); Wilson v. State, 644 N.E.2d 555, 557 (Ind.1994); Beasley v. State, 643 N.E.2d 346, 348 (Ind.1994); Greer v. State, 643 N.E.2d 324, 326 (Ind.1994); Simmons v. State, 642 N.E.2d 511, 513 (Ind.1994).

1995See Beasley v. State (1994), Ind., 643 N.E.2d 346 (while jury instructions are usually evaluated as a whole, where an incorrect mens rea is included in an attempted murder instruction the error cannot be cured by another instruction).

2002See Metcalfe v. State, 715 N.E.2d 1236, 1237 (Ind.1999); Wilson v. State, 644 N.E.2d 555, 557 (Ind.1994); Beasley v. State, 643 N.E.2d 346, 348 (Ind.1994); Greer v. State, 643 N.E.2d 324, 326 (Ind.1994); Simmons v. State, 642 N.E.2d 511, 513 (Ind.1994).

1995See also Greer v. State (1994), Ind., 643 N.E.2d 324 .

2002See Ramsey v. State, 723 N.E.2d 869, 872-73 (Ind.2000);, Metcalfe, 715 N.E.2d at 1237 ; Yerden v. State, 682 N.E.2d 1283, 1286 (Ind.1997); Swallows v. State, 674 N.E.2d 1317, 1318 (Ind.1996).

2002However, our supreme court, in Swallows v. State, 674 N.E.2d 1317 (Ind.1996), quite clearly held that there is no "intent-to-kill-cannot-be-seriously-disputed" exception to Spradlin: Judge Najam asks that we reexamine our decisions holding that in post-conviction attempted murder cases the failure to instruct on specific intent constitutes fundamental error even where the defendant's intent to kill cannot be seriously disputed.

2007Cf. Hopkins v. State, 782 N.E.2d 988, 991 (Ind.2003) (rejecting claim of fundamental error on an attempted murder instruction based on the State’s overwhelming evidence; specifically, defendant and brother confined man and woman in basement, brother went upstairs to look for drugs, defendant shot man at close range, brother returned and shot woman at short range with defendant present); McCann v. State, 854 N.E.2d 905, 910-11 (Ind.Ct.App.2006) (affirming denial of post-conviction relief where attorney may have performed deficiently in failing to object to attempted murder instruction, but no p

2004The post-conviction court also concluded that on direct appeal, we would have found no fundamental error because of the nature of the evidence admitted at Dawson's trial, and it likened this matter to Hopkins v. State, 782 N.E.2d 988, 991 (Ind.2008), where our supreme court rejected a claim of fundamental error on an attempted murder instruction based on the State's overwhelming evidence.

2006Moreover, as the attempted murder instruction suggests, "[t]he intent to kill may be inferred from the use of a deadly weapon in a manner likely to cause death or serious bodily injury." Webster v. State, 699 N.E.2d 266, 268 (Ind.1998).

2006Moreover, as the attempted murder instruction suggests, "[the intent to kill may be inferred from the use of a deadly weapon in a manner likely to cause death or serious bodily injury." Webster v. State, 699 N.E.2d 266, 268 (Ind.1998).

2002See Metcalfe v. State, 715 N.E.2d 1236, 1237 (Ind.1999); Wilson v. State, 644 N.E.2d 555, 557 (Ind.1994); Beasley v. State, 643 N.E.2d 346, 348 (Ind.1994); Greer v. State, 643 N.E.2d 324, 326 (Ind.1994); Simmons v. State, 642 N.E.2d 511, 513 (Ind.1994).

2002To support his claim of fundamental error, Bear cites to Metcalfe v. State, 715 N.E.2d 1236, 1237 (Ind.1999) and Taylor v. State, 616 N.E.2d 748, 749 (Ind.1993), cases in which our supreme court concluded that the inclusion of the word "knowingly" in an attempted murder instruction that required an intentional act constituted fundamental error.

2020See Elliott, 786 N.E.2d at 802 ; Clay, 766 N.E.2d at 37 . [18] The jury instruction challenged by Day in the present case is virtually identical to the language found to be proper in both Clay and Elliott.

2003Elliott (“Elliott”) petitions for rehearing of our opinion in Elliott v. State, 786 N.E.2d 799 (Ind.Ct.App.2003) and contends that our review under a fundamental error standard of whether an attempted murder instruction was properly given was not appropriate.

2015See Williams v. State, 735 N.E.2d 785, 789 (Ind. 2000) (referring to a challenge to an attempted murder instruction as “interesting,” but not available on appeal because the instruction was given as modified per the request of the defense).

2002Purpose is defined as "a result or effect that is intended or desired; an intention." Id. 5 We hold that the meaning of the phrase "conscious purpose" is equivalent to the mens rea of "specific intent." For this reason, the use of the phrase "conscious purpose" in an attempted murder instruction does not constitute fundamental error 6 because it has the same meaning as "specific intent" and informs the jury that the State must prove that the defendant intended to kill the victim. 7 Defendant also argues that the trial court committed fundamental error when it instructed the jury that the State

2006In Booker v. State, 741 N.E.2d 748 (Ind.Ct.App.2000), in which the appellant challenged an attempted murder instruction on direct appeal, another panel of this Court stated, To be sure, the use of a deadly weapon in a manner likely to cause death or serious bodily injury is not, in and of itself, equivalent to a conscious objective to kill.

2006In Booker v. State, 741 N.E.2d 748 (Ind.Ct.App.2000), in which the appellant challenged an attempted murder instruction on direct appeal, another panel of this Court stated, To be sure, the use of a deadly weapon in a manner likely to cause death or serious bodily injury is not, in and of itself, equivalent to a conscious objective to kill.

2002See Metcalfe v. State, 715 N.E.2d 1236, 1237 (Ind.1999); Wilson v. State, 644 N.E.2d 555, 557 (Ind.1994); Beasley v. State, 643 N.E.2d 346, 348 (Ind.1994); Greer v. State, 643 N.E.2d 324, 326 (Ind.1994); Simmons v. State, 642 N.E.2d 511, 513 (Ind.1994).

1996Id.

2002See Ramsey v. State, 723 N.E.2d 869, 872-73 (Ind.2000);, Metcalfe, 715 N.E.2d at 1237 ; Yerden v. State, 682 N.E.2d 1283, 1286 (Ind.1997); Swallows v. State, 674 N.E.2d 1317, 1318 (Ind.1996).

2000The last two sentences of the attempted murder instruction required that the defendant "must have had specific intent to commit murder.” Id. at 1285 .

2002See Smith v. State, 459 N.E.2d 355, 358 (Ind. 1984) ("An instruction which correctly sets forth the elements of attempted murder requires an explanation that the act must have been done with the specific intent to kill.”). .

1991Our supreme court in Smith v. State (1984), Ind., 459 N.E.2d 355 , set forth a standard for measuring what information must be conveyed to the jury in an attempted murder instruction: “Although one may be guilty of murder, under our statute, without entertaining a specific intent to kill the victim, he cannot be guilty of attempted murder without entertaining such intent.

2018“However, error in an attempted murder instruction does not rise to the level of fundamental error where either 1) the instructions as a whole sufficiently inform the jury of the requirement of intent to kill; and/or 2) the intent of the perpetrator was not a central issue at trial.” Id. [16] In McKinley v. State, 45 N.E.3d 25, 29 (Ind. Ct. App. 2015), trans. denied, this court addressed the same argument that Radford makes, namely, that a Spradlin error had occurred where the term “knowingly” was included in a jury instruction on the elements of possession of cocaine with intent to deliver.

2017Id. ; see also Tiller v. State , 896 N.E.2d 537 , 542 (Ind. Ct. App. 2008) ("While the trial court's instruction correctly stated the law as it generally pertained to accomplice liability, the trial court's instruction fell short of adequately instructing the jury that the specific intent requirement for attempted murder, as properly set forth in the attempted murder instruction, also applied to accomplice liability for attempted murder."), trans denied . [14] Here, like the defendant in Rosales , Lee was charged with attempted murder under both direct and accomplice theories of liability.

2017And, as in Rosales , while Lee's jury instructions noted specific intent was required to convict him of attempted murder, the instructions regarding accomplice liability indicated that a person could be guilty of attempted murder without also noting that he must have the specific intent to kill. 11 Furthermore, as in Rosales , the prosecutor exacerbated that error by indicating in his closing argument that Lee's specific intent to kill was not required to find him guilty of attempted murder as an accomplice. 12 Id.

2008Cf. Concepcion v. State, 796 N.E.2d 1256, 1263 (Ind.Ct.App.2003) (finding that it was not fundamental error when appellate counsel failed to challenge an attempted murder instruction when the appellate brief was filed before Spradlin was decided).

2008Cf. Concepcion v. State, 796 N.E.2d 1256, 1263 (Ind.Ct.App.2003) (finding that it was not fundamental error when appellate counsel failed to challenge an attempted murder instruction when the *324 appellate brief was filed before Spradlin was decided).

2007Cf. Hopkins v. State, 782 N.E.2d 988, 991 (Ind.2003) (rejecting claim of fundamental error on an attempted murder instruction based on the State’s overwhelming evidence; specifically, defendant and brother confined man and woman in basement, brother went upstairs to look for drugs, defendant shot man at close range, brother returned and shot woman at short range with defendant present); McCann v. State, 854 N.E.2d 905, 910-11 (Ind.Ct.App.2006) (affirming denial of post-conviction relief where attorney may have performed deficiently in failing to object to attempted murder instruction, but no p

2006Attempted Murder Instruction McCann first contends that trial counsel was ineffective in failing to object to the trial court's attempted murder instruction and tender a correct instruction. 1 Regarding ineffectiveness claims, our supreme court has stated, A defendant claiming a violation of the right to effective assistance of counsel must establish the two components set forth in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); accord Williams v. Taylor, 529 U.S. 362, 390-91 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000).

2006Attempted Murder Instruction McCann first contends that trial counsel was ineffective in failing to object to the trial court's attempted murder instruction and tender a correct instruction. 1 Regarding ineffectiveness claims, our supreme court has stated, A defendant claiming a violation of the right to effective assistance of counsel must establish the two components set forth in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); accord Williams v. Taylor, 529 U.S. 362, 390-91 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000).

2004See Ramsey v. State, 728 N.E.2d 869, 872 (Ind.2000).

2003Woodson v. State, 767 N.E.2d 1022, 1026 (Ind.Ct.App.2002).