Hopkins v. State

ON PETITION FOR TRANSFER

SULLIVAN, Justice.

Defendant Edward Hopkins was con-viected 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 con-viected on two counts of Attempted Murder, two counts of Robbery, two counts of Criminal Confinement, and Carrying a *990Handgun 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.1994). 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 Defen*991dant'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 cireumstance, 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 MeCarty.

*992We 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.