FOR PUBLICATION Aug 27 2014, 9:18 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ELLEN M. O’CONNOR GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MARQUISE LEE, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1310-CR-869
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Grant W. Hawkins, Judge
Cause No. 49G05-1209-MR-62632
August 27, 2014
OPINION ON REHEARING - FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Marquise Lee petitions for rehearing after we affirmed his conviction for
attempted aggravated battery, a Class B felony, in a not-for-publication memorandum
decision. See Marquise Lee v. State, No. 49A02-1310-CR-869, 2014 WL 2187702 (Ind.
Ct. App. May 27, 2014) (“Marquise Lee I”). Marquise and two of his confederates,
Latoya Lee and Billy Young, were each charged with the murder of Ramon Gude, they
were tried jointly to the bench, and, on their joint motion, the trial court entered an
involuntary dismissal of the State’s murder charges. However, in doing so the court
“kept the case open for consideration of lesser included battery charges.” Id. at *1. The
court then found each of the three defendants guilty of attempted aggravated battery, and
the defendants separately appealed. Following this panel’s decision, another panel of this
court unanimously reversed Young’s conviction. Young v. State, ___ N.E.3d ___, 2014
WL 2616189 (Ind. Ct. App. 2014), reh’g denied (July 22, 2014). A third panel of this
court unanimously affirmed Latoya’s conviction and sentence. Latoya Lee v. State, No.
49A02-1310-CR-867, 2014 WL 2587313 (Ind. Ct. App. June 10, 2014), reh’g granted
and decision aff’d (August 27, 2014) (“We grant rehearing to acknowledge our
awareness of the decision in Young but decline to reverse our earlier decision . . . as
[Latoya] did not raise any issue concerning the charging information on appeal.”).
Marquise now petitions for rehearing and asks that this panel follow the Young panel’s
reasoning. We decline to do so and affirm our prior decision.
2
FACTS AND PROCEDURAL HISTORY
In Marquise Lee I, we set out the facts underlying Marquise’s conviction for
attempted aggravated battery, a Class B felony, as follows:
Tiara Robertson used to date Brandon Lee and was good friends with
Brandon’s sister, Latoya Lee. Latoya is Marquise’s mother.
Sometime before September of 2012, Tiara left Brandon and began
dating Ramon Gude. This upset Latoya and, on September 5, 2012, Latoya
confronted Tiara at Tiara’s and Ramon’s shared residence. Ramon
interceded in this argument and hit Latoya in the face. Latoya was “mad”
and left saying, “I’ll be back.” Transcript at 32.
On September 7, Latoya returned to Tiara’s and Ramon’s residence.
Latoya was accompanied by Marquise, Billy Young (a cousin of Latoya
and Brandon), and a third, unknown man. Tiara was upstairs when they
arrived but rushed downstairs when she heard Ramon yelling. Upon
arriving downstairs, she observed Marquise attacking Ramon, who was
trying to get inside. Tiara tried to help pull Ramon inside the house during
the attack. Latoya told Tiara to “get out of the way.” Id. at 39.
Once inside the residence, Ramon “balled up” his body while the
three men came inside to continue their attack. Id. Tiara then observed
Billy hand a firearm and clip to Marquise. But Marquise was not able to
load the clip into the firearm. While Tiara watched Marquise fumble with
his clip and firearm, Billy was in her line of sight, and Latoya was outside.
Tiara then heard several gunshots from the direction of the unknown man
and observed that Marquise and Billy “looked . . . surprised.” Id. at 76.
Ramon collapsed, the assailants fled, and Tiara called 9-1-1. A neighbor
heard the gunshots, witnessed the assailants flee the scene, and recognized
the female assailant from the September 5 argument. Ramon died later that
day from his gunshot wounds.
On September 24, the State charged Latoya, Marquise, and Billy
with murder, a felony, and conspiracy to commit murder, a Class A felony.
The defendants were tried jointly to the bench on September 9 and 10,
2013. Following the close of the State’s evidence, the trial court granted
the defendants’ motion for involuntary dismissal of the murder and
conspiracy to commit murder charges but kept the case open for
consideration of lesser included battery charges. Following the trial, the
court found Marquise guilty of attempted aggravated battery, a Class B
felony, and sentenced him to fifteen years
3
2014 WL 2187702 at *1 (footnotes omitted). For the same reasons, the trial court entered
the same convictions and sentences for Latoya and Young. The man who actually shot
and killed Ramon remains unknown.
Marquise, Latoya, and Young separately appealed their sentences and convictions
and each appeal was reviewed by a different panel of this court. In Marquise Lee I, this
panel unanimously held that the State presented sufficient evidence to support Marquise’s
conviction for attempted aggravated battery. Id. at *2. In particular, we noted that, in
granting the defendants’ motion for involuntary dismissal of the murder and conspiracy
to commit murder charges but then entering judgment for attempted aggravated battery,
the trial court concluded that the State had demonstrated that Marquise
intended at least to severely beat Ramon but was interrupted when the
unknown man at the scene murdered Ramon. And the trial court’s
conclusion is supported by the evidence. We agree with the State that the
evidence shows that Marquise and his companions intended to inflict the
type of injuries on Ramon that are contemplated in the aggravated battery
statute. Appellee’s Br. at 10. The State demonstrated that Marquise
arrived at Ramon’s residence with Latoya less than forty-eight hours after
Ramon had struck Latoya in an argument. Latoya left that argument with
the admonition that she would return, and when she did return, Marquise,
Billy, and the unknown man were with her.
The men immediately proceeded to attack Ramon. Marquise was
the first to attack him, and the men continued to beat Ramon as Tiara pulled
him into the residence and Ramon “balled up” his body to protect himself.
Transcript at 39. Further, at least two of the men were armed, and
Marquise held one of the firearms at the time Ramon was murdered.
The State’s evidence sufficiently demonstrates that Marquise
intended to inflict injury to Ramon that would have created a substantial
risk of either his death or disfigurement and that Marquise took a
substantial step toward the commission of that crime. That the attack was
brought to an unexpected halt by the unknown man shooting Ramon does
not absolve Marquise of liability for his own conduct. . . .
4
Id. In two footnotes, we stated that “[t]here is no dispute that attempted aggravated
battery is a lesser included offense to murder” and that “we do not read the Appellant’s
Brief to raise a ‘variance’ argument.” Id. at *1 n.4 & *2 n.6.
Two weeks after this panel handed down Marquise Lee I, another panel of this
court unanimously affirmed Latoya’s conviction for attempted aggravated battery and her
fifteen-year sentence. Regarding Latoya’s challenge to her conviction, that panel held:
Here the evidence shows that [Latoya] was angry with Gude after their
altercation and threatened him that she would be back. Tr. p. 32. Two days
later, [Latoya] returned to Robertson’s home with Marquise, Young, and
the unidentified shooter. Id. at 35. Marquise began “throwing punches” at
Gude and appeared to be getting the better of him. Id. at 36. Moreover, the
evidence demonstrates that Marquise and Young came to Robertson’s
apartment armed with a handgun. Id. at 43-44. After Robertson pulled
Gude inside, Young and Marquise followed, and Young handed a gun and
clip to Marquise. Id. Under these circumstances, a reasonable trier of fact
could determine that [Latoya] committed class B aggravated battery.
Therefore, we conclude that the evidence was sufficient to support
[Latoya’s] conviction.
Latoya Lee, 2014 WL 2587313 at *3. As with Marquise, Latoya did not argue on appeal
that attempted aggravated battery was not a lesser included offense to murder, nor did she
raise an argument that the State’s evidence at trial was an impermissible variance from
the charging information.
On June 12, a third panel, also unanimous, handed down its opinion in Young v.
State. The Young panel held that “the facts alleged in the charging information must be
the same facts that form the basis for a lesser included offense.” Young, ___ N.E.3d ___,
2014 WL 2616189 at *3. The Young panel then concluded that
[t]he trial court found the alleged facts underlying Young’s murder charge
were not proved beyond a reasonable doubt, and his conviction for
attempted aggravated battery was based on other evidence presented at trial.
5
Thus, Young’s attempted aggravated battery conviction is not a lesser
included offense of the murder charge.
Id. Thus, the Young panel reversed Young’s conviction for attempted aggravated
battery. Marquise’s petition for rehearing ensued.
DISCUSSION AND DECISION
In his petition for rehearing, Marquise asks that we vacate our prior decision,
follow the Young panel, and reverse his conviction for not having been properly charged
by the State. The State responds on several fronts, including that Marquise has not
preserved this issue for appellate review. Marquise responds that, since Young received
the benefit of appellate review without a proper objection to the trial court, he should as
well.
There is no question that Marquise has not preserved this issue for our review.
See Marquise Lee I, 2014 WL 2187702 at *1 n.4. But, while the Young panel recognized
that Young made “no explicit objection” to the trial court’s judgment for attempted
aggravated battery, that panel nonetheless considered the matter preserved for appellate
review. ___ N.E.3d ___, 2014 WL 2616189 at *2 n.5. In particular, the panel criticized
the trial court for not “present[ing] a clear opportunity for a timely objection,” and the
Young panel did not set out our standard of review under the fundamental error doctrine.
Id.
We disagree with the Young panel that the trial court did not present the
defendants with a clear opportunity for a timely objection. Upon granting the defendants’
motion for involuntary dismissal of the murder and conspiracy to commit murder
charges, the trial court explicitly informed the defendants that it would consider lesser
6
included offenses and, specifically, “all the possible batteries on the table.” Tr. at 268.
This would have been an ideal time for any one of the defendants to lodge an objection
and request a continuance to prepare their case accordingly. And our Supreme Court has
repeatedly stated that, when a defendant fails to object and request a continuance on the
grounds that a putative lesser charge is not included in the original charge, “the defendant
is not entitled to appellate relief.” Miller v. State, 753 N.E.2d 1284, 1287-88 (Ind. 2001);
see also Wright v. State, 690 N.E.2d 1098, 1104 (Ind. 1997) (“Had defendant seriously
believed that the amendment of the charges prejudiced him in any way, he should have
requested a continuance to further evaluate and prepare his case in light of the
amendments. Having failed [to do so], defendant has waived this issue on appeal.”).
And even if Marquise’s argument were available for our review in Marquise Lee I,
Marquise abandoned it on appeal. See 2014 WL 2187702 at *1 n.4.
Nonetheless, the Young panel expressly noted that it “would find fundamental
error” on Young’s argument that attempted aggravated battery was not a lesser included
offense to murder. Young, ___ N.E.3d ___, 2014 WL 2616189 at *2 n.5. As such, we
consider Marquise’s argument on rehearing under the fundamental error doctrine. As
Indiana’s appellate courts have often explained:
Failure to object at trial waives an issue on appeal unless the appellant can
show fundamental error—that is, “an error that ma[de] a fair trial
impossible or constitute[d a] clearly blatant violation[] of basic and
elementary principles of due process presenting an undeniable and
substantial potential for harm.” Clark v. State, 915 N.E.2d 126, 131 (Ind.
2009). That exception is “extremely narrow,” Benson v. State, 762 N.E.2d
748, 755 (Ind. 2002), and reaches only errors that are so blatant that the
trial judge should have taken action sua sponte. Brewington v. State, 7
N.E.3d 946, 974 (Ind. 2014); accord Whiting v. State, 969 N.E.2d 24, 34
(Ind. 2012) (“A finding of fundamental error essentially means that the trial
7
judge erred . . . by not acting when he or she should have . . . .”). In sum,
fundamental error is a daunting standard that applies “only in egregious
circumstances.” Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003).
Knapp v. State, 9 N.E.3d 1274, 1281 (Ind. 2014) (alterations and omissions original).
Whether the fact-finder may consider an offense as lesser included to the charged
offense requires the following considerations:
First, a trial court must compare the statute defining the crime charged with
the statute defining the alleged lesser included offense. If (a) the alleged
lesser included offense may be established “by proof of the same material
elements or less than all the material elements” defining the crime charged,
or (b) the only feature distinguishing the alleged lesser included offense
from the crime charged is that a lesser culpability is required to establish
the commission of the lesser offense, then the alleged lesser included
offense is inherently included in the crime charged. If an offense is
inherently included in the crime charged, then a trial court should proceed
to step three below. We emphasize here that the wording of a charging
instrument never forecloses or precludes an instruction on an inherently
lesser included offense.
Second, if a trial court determines that an alleged lesser included
offense is not inherently included in the crime charged under step one, then
it must compare the statute defining the alleged lesser included offense with
the charging instrument in the case. If the charging instrument alleges that
the means used to commit the crime charged include all of the elements of
the alleged lesser included offense, then the alleged lesser included offense
is factually included in the crime charged, and the trial court should proceed
to step three below. If the alleged lesser included offense is neither
inherently nor factually included in the crime charged, then the trial court
should not give a requested instruction on the alleged lesser included
offense.
Third, if a trial court has determined that an alleged lesser included
offense is either inherently or factually included in the crime charged, it
must look at the evidence presented in the case by both parties. If there is a
serious evidentiary dispute about the element or elements distinguishing the
greater from the lesser offense and if, in view of this dispute, a jury could
conclude that the lesser offense was committed but not the greater, then it is
reversible error for a trial court not to give an instruction, when requested,
on the inherently or factually included lesser offense. If the evidence does
not so support the giving of a requested instruction on an inherently or
8
factually included lesser offense, then a trial court should not give the
requested instruction.
Wright v. State, 658 N.E.2d 563, 566-67 (Ind. 1995) (emphases original; citations and
footnotes omitted).1
Although it is not clear whether the trial court considered attempted aggravated
battery to be inherently or factually included within the State’s charge of murder, we
need only consider whether attempted aggravated battery is inherently included within a
charge of murder. On this issue, the Young panel said only that, “[a]t first blush, it would
seem attempted aggravated battery could be an inherently lesser included offense of
murder.” ___ N.E.3d ___, 2014 WL 2616189 at *3. In a footnote, the Young panel
added:
case law on that point is somewhat conflicting. Compare Ratcliffe v. State,
553 N.E.2d 1208, 1212 (Ind. 1990) (“Battery is not inherently a lesser
included offense of murder.”) with Salone v. State, 652 N.E.2d 552, 558
(Ind. Ct. App. 1995) (holding battery is an inherently lesser included
offense of aggravated battery), trans. denied, and Meriweather v. State, 659
N.E.2d 133, 141-42 (Ind. Ct. App. 1995) (holding attempted aggravated
battery is an inherently lesser included offense of attempted murder), trans.
denied, abrogated in part on other grounds by Wright, 658 N.E.2d at 570.
Id. at *3 n.7. But then the panel held that, “under the circumstances of this particular
case, a conviction of attempted aggravated battery as a lesser included offense is not
appropriate.” Id. at *3.
We disagree with the Young panel’s conclusion that it is not appropriate on these
facts to determine that attempted aggravated battery is an inherently lesser included
1
Because the trial court entered judgment against Marquise on a lesser included offense, we need
not analyze the third prong of the Wright test, although we include it here for completeness. Further, it is
of no moment that the Wright test discusses instructions to the jury whereas, here, Marquise was tried to
the bench. See, e.g., Miller, 753 N.E.2d at 1288.
9
offense to murder. If it is inherently included, then “the original information already
encompasses charges of both” the greater and the lesser offenses. State v. O’Grady, 876
N.E.2d 763, 767 (Ind. Ct. App. 2007). Thus, there is no due process concern, and “the
wording of a charging instrument never forecloses or precludes an instruction on an
inherently lesser included offense.” Wright, 658 N.E.2d at 567 (emphasis original).
Again, we need only decide whether the trial court’s apparent assessment that
attempted aggravated battery is an inherently lesser included offense to murder was
“blatant[ly]” incorrect. See Knapp, 9 N.E.3d at 1281. It was not. As the Young panel
recognized, “[a]t first blush, it would seem attempted aggravated battery” is an inherently
included lesser offense to murder. ___ N.E.3d ___, 2014 WL 2616189 at *3. This fact
alone demonstrates that the trial court did not commit an “egregious” and “blatant” error.
Knapp, 9 N.E.3d at 1281.
To be sure, however, this court has long held that attempted aggravated battery is
an inherently lesser included offense to attempted murder. Meriweather, 659 N.E.2d at
141-42. As we explained in Meriweather:
Two reasons compel our decision that attempted aggravated battery is an
inherently lesser included offense of attempted murder. First, one cannot
take a substantial step toward knowingly or intentionally killing another
person without necessarily taking a substantial step toward inflicting an
injury which creates a substantial risk of death or one that would cause the
kind of permanent injury required to gain conviction for attempted
aggravated battery. Quite logically, a murder victim must necessarily die
from some type of injury which creates a substantial risk of death.
Second . . . the crime of attempted aggravated battery necessarily
contains all of the statutory elements of attempted murder except for an
intent to kill. In reality, the distinction between attempted aggravated
battery and attempted murder is seemingly minute. . . . [I]n the abstract, the
only distinguishing characteristic between attempted murder and attempted
10
aggravated battery is the resulting harm the assailant intends to inflict upon
his or her victim. An assailant attempting murder has an intent to kill,
whereas an assailant attempting the crime of aggravated battery has an
intent only to inflict an injury which creates a substantial risk of death or
one that would permanently disfigure or impair, but not necessarily cause
death. . . . Again, the element of intent is not to be considered as
distinguishing in determining whether one offense is necessarily included
in another.
Id. And it should go without saying that attempted murder is an inherently lesser
included offense to murder. Ledesma v. State, 761 N.E.2d 896, 899 (Ind. Ct. App. 2002).
Thus, the trial court did not commit fundamental error when it entered judgment against
Marquise for attempted aggravated battery as an inherently lesser included offense to the
charge of murder.2
As in Marquise Lee I, we do not read Marquise’s argument in his petition for
rehearing to be that the State’s evidence against him amounted to an impermissible
variance from the charging information. See 2014 WL 2187702 at *2 n.6; see also
Young, ___ N.E.3d ___, 2014 WL 2616189 at *3 (refusing to characterize the dispositive
issue on appeal as a variance argument). Neither does either side ask this court to assess
the trial court’s decision here under Fajardo v. State, 859 N.E.2d 1201, 1205 (Ind. 2007),
superseded by statute on other grounds, regarding amendments to a charging information.
As such, these issues are not before us on this petition for rehearing.
2
Contrary to the Young panel, we think it is of no moment that our supreme court has held that
“[b]attery is not inherently a lesser included offense to murder.” Ratcliffe, 553 N.E.2d at 1212. First,
Marquise was not convicted of battery but attempted aggravated battery. And, second, Ratcliffe was
decided following pre-Wright case law, which the court in Wright criticized for causing “confusion.”
Wright, 658 N.E.2d at 567 (criticizing Lawrence v. State, 268 Ind. 330, 375 N.E.2d 208 (1978));
Ratcliffe, 553 N.E.2d at 1211 (following Lawrence). In any event, our holding here is simply that the
trial court did not commit fundamental error when it acted in accordance with Meriweather and Ledesma.
11
In sum, we decline Marquise’s request to follow the reasoning of the Young panel.
We hold that Marquise did not preserve this issue for appellate review and that the trial
court did not commit fundamental error when it entered judgment against Marquise for
attempted aggravated battery as an inherently lesser included offense to the State’s charge
of murder. As such, we grant Marquise’s petition for rehearing and we affirm our prior
decision.
Affirmed.
VAIDIK, C.J., and BROWN, J., concur.
12