Attorney for Appellant
Ann M. Sutton
Marion County Public Defender Agency
Indianapolis, IN
Attorneys for Appellee
Steve Carter
Attorney General
Cynthia L. Ploughe
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
EDWARD M. HOPKINS
Appellant (Defendant below),
v.
STATE OF INDIANA
Appellee (Plaintiff below).
)
) Supreme Court No.
) 49S02-0302-CR-54
)
)
) Court of Appeals No.
) 49A02-0109-CR-590
)
)
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Robyn Moberly, Judge
Cause No. 49G02-9903-CF-047240
ON PETITION FOR TRANSFER
February 10, 2003
SULLIVAN, Justice.
Defendant Edward Hopkins was convicted as an accomplice to his
brother Anthony’s attempted murder of a woman. The brothers were tried
together but appealed their convictions separately. In Anthony’s appeal,
we found that the jury had not been properly instructed on the intent
necessary to convict a defendant in these circumstances. However, we find
that Defendant’s specific intent to kill was sufficiently clear that
notwithstanding the erroneous instruction, his conviction should be
affirmed.
Background
Edward Hopkins (“Defendant”) was tried together with his brother,
Anthony Hopkins (“Anthony”), and both were convicted on two counts of
Attempted Murder, two counts of Robbery, two counts of Criminal
Confinement, and Carrrying a Handgun without a License. Anthony was also
found to be a habitual offender and this additional adjudication caused the
brothers’ appeals to take different tracks.
Under the appellate jurisdictional rules in effect at the time, the
appeal from a conviction with respect to which a sentence of more than 50
years was imposed on any one count was taken directly to the Supreme Court.
However, if the longest sentence imposed on any one count was 50 years or
less, the appeal was taken to the Court of Appeals. See Ind. Appellate
Rule 4(A)(7) & 4(B) (2000).
The longest sentence on any one count imposed on Defendant was 50
years (for each of the attempted murder counts). His appeal, therefore,
was to the Court of Appeals. But Anthony received a 70-year sentence on
one of the attempted murder counts as a consequence of the 20-year habitual
offender enhancement. His appeal, therefore, was to this court.
In a nutshell, the Court of Appeals affirmed both of Defendant’s
attempted murder convictions but remanded the case to the trial court for
resolution of another issue. Hopkins v. State, 747 N.E.2d 598 (Ind. Ct.
App. 2001), transfer denied, 761 N.E.2d 412 (Ind. 2001) (table).
Meanwhile, our court reversed one of Anthony’s attempted murder
convictions. Hopkins v. State, 759 N.E.2d 633 (Ind. 2001). After the
trial court resolved the issue on remand, Defendant again appealed to the
Court of Appeals asking that one of his attempted murder convictions be
reversed for the same reason that this court reversed one of Anthony’s
attempted murder convictions.
The Court of Appeals rejected this request. It held that it had
previously addressed and rejected exactly the same claim in Defendant’s
first trip to the Court of Appeals and that its earlier holding was the
“law of the case,” not subject to being revisited. Hopkins v. State, 769
N.E.2d 702 (Ind. Ct. App. 2002). Defendant now makes the same request of
our court by means of a petition to transfer.
Discussion
Defendant seeks transfer, challenging the conclusion of the Court of
Appeals that the “law of the case” doctrine bars reconsideration of the
viability of one of his attempted murder convictions. The law of the case
doctrine mandates that an appellate court's determination of a legal issue
binds the trial court and ordinarily restricts the court on appeal in any
subsequent appeal involving the same case and relevantly similar facts.
State v. Huffman, 643 N.E.2d 899, 901 (Ind. 1997). Huffman acknowledged,
however, that “[a] court has the power to revisit prior decisions of its
own or of a coordinate court in any circumstance, although as a rule courts
should be loathe to do so in the absence of extraordinary circumstances
such as where the initial decision was ‘clearly erroneous and would work
manifest injustice.’” Id. (citation omitted).
Defendant asks that an exception be made to the law of the case
doctrine here because the initial decision was clearly erroneous and would
work manifest injustice. The Court of Appeals expressed sympathy for
Defendant’s position but ultimately rejected it:
This may be a valid claim. However, this court is not the correct
forum to hear that issue at this time. … [Defendant] would be
entitled to a review of this issue in this court upon a denial of a
post-conviction petition by the post-conviction court. Until that
time, the issue of instructional error must be barred from further
review by the doctrine of law of the case.
Hopkins, 769 N.E.2d at 706.
We agree with the Court of Appeals that the law of the case doctrine
bars Defendant’s claim. Given our familiarity with the facts of this case,
we nonetheless proceed to the merits in the interest of judicial economy as
we find that Defendant would not be entitled to relief on this claim in a
post-conviction proceeding.
Defendant’s substantive claim is that one of his two convictions for
attempted murder must be reversed due to fundamental error in the way the
jury was instructed on attempted murder. As authority, he points to the
fact that our court reversed one of Anthony’s convictions for attempted
murder due to fundamental error in the way the jury was instructed on
attempted murder. Hopkins, 759 N.E.2d at 639. The instruction failed to
inform the jury that to convict on the charge of attempted murder, it was
required to find beyond a reasonable doubt that Defendant possessed the
specific intent to kill the alleged victim. Id. at 637 (citing Bethel v.
State, 730 N.E.2d 1242, 1246 (Ind. 2000)). As the trial court used the
same attempted murder instruction for Defendant that we found erroneous in
Anthony’s situation, we agree with Defendant that the trial court erred in
instructing the jury in his situation as well.
But Defendant’s claim is one of fundamental error – error so egregious
that reversal of a criminal conviction is required even if no objection to
the error is registered at trial. For error to be “fundamental,” prejudice
to the defendant is required. Wrinkles v. State, 690 N.E.2d 1156, 1171
(Ind. 1997) (“A claim of fundamental error is not viable absent a showing
of grave peril and the possible effect on the jury's decision,” quoting
Isom v. State, 651 N.E.2d 1151, 1152 (Ind. 1995)).
A review of the facts of this case demonstrates that Anthony suffered
prejudice as a result of the erroneous jury instruction but Defendant did
not.
Defendant and Anthony confined a man named Martinez and a woman named
McCarty in a basement. Anthony then went upstairs to look for drugs.
While Anthony was upstairs, Defendant shot Martinez at close range.
Anthony then returned and shot McCarty at short range. Both Martinez and
McCarty pretended to be dead but both survived.
Defendant was charged with the attempted murder of each of Martinez
(where he was the actual shooter) and of McCarty (where Anthony was the
actual shooter). Anthony was charged with the attempted murder of each of
Martinez (where Defendant was the actual shooter) and of McCarty (where
Anthony was the actual shooter). That is, the attempted murder charge
against Defendant with respect to McCarty and against Anthony with respect
to Martinez were each premised on an accomplice liability theory – with
respect to those shootings, they were not the actual shooters. In
Anthony’s situation, we found that because Anthony was upstairs when
Defendant shot Martinez, it was simply too attenuated to say that Anthony
was an accomplice to the attempted murder of Martinez without the jury
having been instructed that it was required to find beyond a reasonable
doubt that Anthony possessed the specific intent to kill Martinez.
Hopkins, 759 N.E.2d 633. Defendant’s situation is entirely different.
When Anthony shot McCarty, Defendant was in the room with him and Defendant
had already shot Martinez, who appeared to be dead. In this circumstance,
the evidence of Defendant’s specific intent that McCarty be killed is
sufficient to conclude that Defendant suffered no prejudice from the
failure of the trial court to instruct the jury that it was required to
find beyond a reasonable doubt that Defendant possessed the specific intent
to kill McCarty.
We hold that Defendant did not suffer the prejudice necessary to
sustain a claim of fundamental error.
Conclusion
We grant transfer pursuant to Ind. Appellate Rule 58(A) and affirm
the judgment of the trial court.
SHEPARD, C.J., and DICKSON, and BOEHM JJ., concur. RUCKER, J.,
concurs with separate opinion.
IN THE
SUPREME COURT OF INDIANA
EDWARD M. HOPKINS, )
) Supreme Court Cause Number
Appellant (Defendant), ) 49S02-0302-CR-54
)
v. )
)
STATE OF INDIANA, ) Court of Appeals Cause Number
) 49A02-0109-CR-590
Appellee (Plaintiff). )
February 10, 2003
RUCKER, Justice, concurring in result.
I agree that the judgment of the trial court should be affirmed.
However that is so only because of the state of the record before us.
Otherwise, it appears to me the same analyses that resulted in the reversal
of Anthony Hopkins’ conviction for the attempted murder of Martinez compel
the same result for Edward Hopkins’ conviction for the attempted murder of
McCarty.
As in Anthony’s case, here the trial court failed to instruct the jury
on the specific intent necessary to establish accomplice liability for
attempted murder. Similarly, as with the case of Anthony, here the
instructions did not inform the jury that in order to convict it was
required to find that defendant Edward Hopkins intended to kill McCarty
when he took the steps that helped Anthony attempt to kill McCarty. Also
as in Anthony’s case, here defendant Edward Hopkins did not object to the
trial court’s instructions, nor did he tender his own correct instructions.
In the case of Anthony, this court found that the failure of the trial
court to instruct the jury regarding specific intent was fundamental error.
Here, however, the majority distinguishes the two cases on the following
grounds:
In Anthony’s situation, we found that because Anthony was
upstairs when Defendant shot Martinez, it was simply too attenuated to
say that Anthony was an accomplice to the attempted murder of Martinez
without the jury having been instructed that it was required to find
beyond a reasonable doubt that Anthony possessed the specific intent
to kill Martinez. . . . Defendant’s situation is entirely different.
Slip op. at 6-7 (citation omitted). It is true that Edward Hopkins shot
Martinez while Anthony was upstairs searching for drugs and money.
However, that was not the basis on which this court reversed Anthony’s
attempted murder conviction. Rather, we identified those instances in
which this court has either found or not found the existence of fundamental
error where trial courts have erroneously instructed juries on the elements
of attempted murder. Hopkins v. State, 759 N.E.2d 633, 638 (Ind. 2001).
And we noted specifically the importance of whether a defendant’s “intent”
was at issue. See id. (quoting Swallows v. State, 674 N.E.2d 1317, 1318
(Ind. 1996) for the proposition that the trial court did not commit
fundamental error where the defense relied on identity and “the intent of
the Defendant was not in issue”). We acknowledged as a fact that Anthony’s
“intent to kill Martinez was clearly at issue.” Id. Accordingly we said:
“[B]ecause Defendant’s intent to kill Martinez was squarely at issue and
because the jury was not properly instructed that it was required to find
beyond a reasonable doubt that Defendant possessed the specific intent to
kill Martinez, we are unable to affirm the trial court’s judgment on this
count.” Id. at 639.
If Edward Hopkins’ intent was an issue at trial, then Edward Hopkins
is entitled to a reversal of the attempted murder conviction for the same
reasons that his co-defendant brother was entitled to reversal. The
problem in this case, however, is that neither in his brief before the
Court of Appeals, nor in his transfer brief before this Court, does Edward
Hopkins mention anything at all about his intent with respect to McCarty or
whether his intent was an issue at trial. Instead, he merely complains
that the same flawed instruction that resulted in Anthony receiving relief
entitles him to relief as well. That is not enough. Perhaps Edward
Hopkins can support his claim through post-conviction proceedings by
establishing the necessary factual record. On this record however he is
entitled to no relief. Therefore, I agree that the judgment of the trial
court should be affirmed and thus concur in the result reached by the
majority.