concurring and dissenting.
I concur with the majority resolution of the issues designated by it as numbers 2 and 3. I respectfully dissent as to the resolution of the issue of the defense of voluntary intoxication, upon which the majority reverses. Two aspects of the majority's treatment of this issue trouble me. First, I believe the majority depreciates the jury's determinative role in evaluating the facts on this issue. Second, I question the majority's use of the standard formulated in Terry v. State for determining when a defendant may not be relieved of responsibility for his acts.
At the outset, I recognize that this is a very difficult case to consider and that there is an abundance of evidence to support the conclusion that Weaver was under the influence of LSD during the time that the material events occurred. I also agree with the majority analysis of the applicability of the defense of voluntary intoxication as provided by I.C. § 85-41-3-5. However, where the majority finds "nothing in the evidence of record from which a jury could reasonably find that Weaver was capable of forming the intent to kill when he attacked Wendy," I must disagree. I believe that the majority has inadvertently reweighed the evidence and, in the process, has discounted the evidence and inferences that reasonably could be drawn therefrom and from which the jury could have (and did) conclude that Weaver not only had the capacity to form the intent to kill Wendy but acted with that intent in his attack on her.
Without rehashing the evidence at length, it is clear that the evidence demonstrated that Weaver was able to walk without difficulty; was able to respond (albeit poorly) to threats, cajoling, and physical attacks; was able to get into the back seat of a car and attempt to throttle a girl in spite of being under attack at the time; was able to lift Wendy and hurl her to the ground, to kick her, and to bang her head on the ground; was able to get into Wendy's car and operate it in leaving the scene of his attack on her; was able, after the car overturned, to free himself from the car by kicking out the windshield; was able to make his way to and into the Blickman house, struggle with the Blick-mans, and respond with verbal abuse to Mrs. Blickman's exhortations; and was able to continue the struggle with the police when they arrived.
There was also evidence that Weaver's recollection of the events was more complete at the hospital than when he testified at trial. The jury heard his testimony at length about the effects of an LSD "trip" and what he remembered of the night in question, which was in fair detail except as to the critical events. The jury also witnessed his apparent disorientation and inability to respond to questions after having testified at length and responsively. The jury was free to conclude that Weaver's apparent disability on the stand was not genuine.
There is no precise set of hoops that a defendant must jump through in order to have the capacity to form a eriminal intent. It is the totality of the facts that is determinative. The issue is not whether LSD influenced Weaver's behavior. We know from our experience that alcohol and other drugs are influencing factors in many physical assaults. The issue is whether the influence of *1317LSD was enough to deprive Weaver of the ability to act with intent.
The jury reasonably could have concluded, for example, that Weaver was capable of intending to escape from the scene of his attack on Wendy, which could be seen as demonstrating his comprehension of the nature of what he had done, and was capable of getting into the car and starting off on his flight. If he had the capacity to intend and initiate that, he had the capacity to intend, for whatever distorted motive, to kill Wendy.
The jury was thoroughly and correctly instructed as to the law applicable to the case, including the defense of voluntary intoxication. The jury specifically requested more information about that defense and was rein-structed. A jury having heard and seen all the evidence in this case, having been properly instructed, and having conscientiously reached its verdict, ought not have an appellate court tell it that it got it all wrong.
The majority quotes Terry v. State (1984), Ind., 465 N.E.2d 1085, for the proposition that "a defendant should not be relieved of responsibility when he was able to devise a plan, operate equipment, instruct the behavior of others or carry out acts requiring physical skill." Id. at 1088. Since Terry, however, the Indiana Supreme Court has held that "where the evidence shows a defendant had the ability to engage offensively in physical combat, to disengage and leave the scene, and to find his way to a friend's home seeking aid, his intoxication was not so great as to relieve him from responsibility for his acts." Ferguson v. State (1992), Ind., 594 N.E.2d 790, 792 (citing Hughett v. State (1990), Ind., 557 N.E.2d 1015). This standard, which does not require that the defendant devise a plan or instruct the behavior of others, appears to focus the intoxication defense analysis on behavioral manifestations of intent rather than mental processes. I believe that the evidence supports the jury's verdict under either analysis, but especially so under Ferguson and Hughett.
In this difficult and tragic case, I would affirm.