Dominique Guyton was found guilty of numerous offenses arising out of a shooting incident on the streets of Indianapolis. His appeal provides an occasion to recapitulate our recent decisions on Double Jeopardy.
Facts and Procedural Background
On April 28, 1998, Indianapolis police officers found the body of Pax Larrimore lying in the street in the 4800 block of Norwaldo Avenue. He had died from two gunshot wounds to the chest and abdomen. As the investigation unfolded, Guyton became a suspect. Guyton and Larrimore had had several encounters in which Larri-more had shot at Guyton from a car. On April 28, police interviewed Guyton. He admitted to running into Larrimore on the day of the murder and claimed that Larri-more had approached his car on foot and put his hand in his pocket. Guyton, thinking Larrimore was about to pull out a gun, drove away. Guyton denied shooting Lar-rimore.
Guyton was charged with murder, two counts of attempted murder, and carrying a handgun without a license. At trial, Guyton had a different account. He claimed that on the day of the shooting he went to visit friends at 43rd and N orwaldo. After talking with his friends for awhile, he left when a group of men, including Larrimore, Anthony Butts, Tonio Walker, and Damon Jackson, approached. Guyton next visited Sherry Akers and made plans for later that evening. According to Guy-ton, after he left Akers, he was driving down Norwaldo when he saw Larrimore flagging him down. When Guyton saw Larrimore's hand on the grip of a gun, he panicked, grabbed his own gun, and fired three or four times.
Butts testified to a third version. According to Butts, Guyton drove up to the group, held his hand out of his car, and fired four shots, one at each of Larrimore, Butts, Walker, and Jackson. He then fired a final shot at Larrimore before driving off, Butts identified Guyton as the shooter from a photo array. According to Jackson, Larrimore did not have a gun that day. |
The jury found Guyton guilty of murdering Larrimore, attempting to murder Jackson, and carrying a handgun without a license. He was sentenced to fifty-five years for murder, thirty years for attempted murder, and one year for the handgun violation, all to be served concurrently.
I. Double Jeopardy Recited
Guyton claims that his convictions for murder and carrying a handgun without a license violate the Double Jeopardy provisions of the Indiana Constitution, citing Richardson v. State, 717 N.E.2d 32 (Ind.1999).
We held in Richardson that the Double Jeopardy clause is violated if there is "a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense." Id. at 58. As we recently explained, "[U)nder the Richardson actual evidence test, the Indiana Double Jeopardy Clause is not violated when the eviden-tiary facts establishing the essential elements of one offense also establish only one or even several, but not all, of the essential elements of a second offense." Spivey v. State, 761 N.E.2d 831, 833 (Ind.2002).
*1143In addition to the instances covered by Richardson, "we have long adhered to a series of rules of statutory construction and common law that are often described as double jeopardy, but are not governed by the constitutional test set forth in Richardson." Pierce v. State, 761 N.E.2d 826, 830 (Ind.2002) (citing Richardson, 717 N.E.2d at 55 (Sullivan, J., concurring), 57 (Boehm, J., concurring in result)).
Justice Rucker recently pointed out that one of these rules prevents enhancing one conviction for robbery by using a death for which the defendant is also being punished. Gross v. State, 769 N.E.2d 1136 (Ind.2002). This comes under the category described by Justice Sullivan as "[cJon-viction and punishment for an enhancement of a crime where the enhancement is imposed for the very same behavior or harm as another crime 'for which the defendant has been convicted and punished." Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring).
'The list of five categories from Justice Sullivan's concurrence in Richardson includes one category presumably covered by constitutional Double Jeopardy (an analysis we recently reaffirmed in Spivey, 761 N.E.2d at 833), described by Justice Sullivan then as "[ejlonviction and punishment for a crime which is a lesser-included offense of another crime for which the defendant has been convicted and punished." Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring).
That list also includes:
-"Conviection and punishment for a crime which consists of the very same act as another crime for which the defendant has been convicted and punished." Id. (giving the example of a battery conviction vacated because the information showed that the identical touching was the basis of a second battery conviction}.
-"Conviction and punishment for a crime which consists of the very same act as an element of another crime for which the defendant has been convicted and punished." Id. (giving the example of a confinement conviction vacated because it was coextensive with the behavior necessary to establish an element of a robbery convietion). M
-"Conviection and punishment for the crime of conspiracy where the overt act that constitutes an element of the conspiracy charge is the very same act as another crime for which the defendant has been convicted and punished." Id. at 56-57 (giving the example of a conspiracy in which the overt act is no more than the crime itself).
As for Guyton’é claim, it does not sue-ceed under any of the above. As we said recently, "Carrying the gun along the street was one crime and using it was another." Mickens v. State, 742 N.E.2d 927, 931 (Ind.2001).
II. Attempted Murder Instruction
Guyton challenges the trial court's instruction on attempted murder, which said: |
A person who knowingly or intentionally kills another human being commits murder.
A person attempts to commit a murder when, acting with the culpability required for commission of the crime of murder, he engages in conduct that constitutes a substantial step toward commission of the murder. The crime of Attempted Murder is a Class A felony.
To convict the Defendant of Attempted Murder, the State must have proved each of the following elements:
The Defendant Dominique Guyton:
1. Acting with the specific intent to commit murder that is by knowingly or intentionally, shooting a deadly weapon, that is a handgun }. [sic] at and a*1144gainst
2. Which was conduct constituting a substantial step toward the commission of intended crime of Attempt Murder.
If the State failed to prove each of these elements beyond a reasonable doubt, you should find the defendant not guilty. .
If the State did prove each of these elements beyond a reasonable doubt, you should find the defendant guilty of the crime of Attempted Murder, a Class A felony.
Guyton objected to the instruction on the ground that this instruction failed to meet the standard set forth in Spradlin v. State, 569 N.E.2d 948 (Ind.1991). In Spradlin, this Court held that attempted murder requires a specific intent to kill, and is not supported by "knowing" actions. Id. at 950. Spradlin held that the failure to instruct correctly on this point is reversible error.
In reviewing a trial court's decision .to give or refuse tendered jury instructions, this Court considers: (1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (8) whether the substance of the tendered instruction is covered by other instructions which are given. Cutter v. State, 725 N.E.2d 401, 408 (Ind.2000). "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." Smith v. State, 459 N.E.2d 355, 358 (Ind.1984). The instruction in this case does not meet this requirement, and is therefore an incorrect statement of the law. It begins by telling the jury that it can convict if the defendant acted with the culpability required for murder, which just one paragraph before is described as "knowingly or intentionally." "Knowingly" is described in another instruction as engaging in conduct when a person "is aware of a high probability that he is doing so." The instruction did refer to the "specific intent to commit murder," but the "specific intent to commit murder" was described as "knowingly or intentionally, shooting a deadly weapon." Guyton is correct that this instruction could be understood by a jury to permit conviction on a knowing killing. It was at best confusing because of its cireular reference to "specific intent to commit murder," which leads to the knowing or intentional definition for murder, as well as the other references to "knowingly."
Guyton objected to the instruction on the ground that it did not refer to a specific intent to kill. This was a valid objection. Because Guyton objected to the instruction and it does not correctly state the law, it was error and his conviction for attempted murder is reversed. See Allen v. State, 575 N.E.2d 615, 617 (Ind.1991) ("Had appellant objected to this instruction at trial, giving it would have been error because it does not inform the jury that the State must prove the defendant acted with intent to kill.").
IH. Juror Misconduct
Guyton finally claims that the trial court abused its discretion in refusing to conduct a hearing on his claim of juror misconduct.
After the trial, Guyton learned that one of the jurors, Frederick Mechum, worked at the Internal Revenue Service with Shirley Amis, Guyton's stepmother. On the first day of trial, Mechum approached Amis and asked if he knew her. She responded that they worked together at the IRS and walked away. On the second day of trial, Mechum and Amis exchanged greetings and again Amis walked away. A few days after trial, Mechum and another coworker approached Amis at work and *1145asked her whether "that was someone to you, at the trial." Amis replied that it was her son. The next day Amis received a sympathy card for the death of her son from her coworker.
Guyton then filed a request for a hearing to determine whether Mechum's mistaken assumption that Larrimore was Amis' son resulted in any bias against Guyton. This motion was accompanied by an affidavit from Amis reciting the facts described above. The trial court denied the motion.
"A defendant seeking a hearing on juror misconduct must first present some specific, substantial evidence showing a juror was possibly biased." Lopez v. State, 527 N.E.2d 1119, 1130 (Ind.1988). In this case, even accepting Guyton's facts as true, he has not presented any evidence of juror bias. From the testimony it is clear that Mechum was not sure who Amis was or whether she had any relation to the defendant or the victim. Only after the trial did Mechum ask her relationship to either. Although he was incorrect in his assumption that her response indicated that she was the mother of the victim, not the defendant, this presents no substantial evidence of bias during the trial.
Conclusion
We affirm the judgment of the trial court as to murder and carrying a handgun without a license. Guyton's conviction for attempted murder is reversed and remanded for retrial.
SULLIVAN and RUCKER, JJ., concur. DICKSON, J., concurs in result with separate opinion. BOEHM, J., concurs with separate opinion.