Collier v. State

BARNES, Judge,

dissenting.

I respectfully dissent. In the majority opinion, Judge Vaidik lucidly frames the question we are faced with here as, "whether evidence that Collier drove to Nancy's place of employment with an ice pick, a box cutter, and binoculars, parked outside the door through which he knew Naney would exit, then fell asleep or passed out is sufficient to have allowed a reasonable jury to find that Collier had taken a substantial step toward the commission of murder." Op. pp. 344-45. I say yes.

I believe it is most important to put this answer in the context of not only the factual posture of this case, but also its legal posture,. These facts were tried to a jury without any serious evidentiary dispute. There is no legal "arm-wrestling" over the instructions that were given or the evidence that was introduced. Neither party argued in its oral presentation to us any serious legal matter other than, are these facts enough to legally sustain an attempted murder conviction?

I agree with the vast majority of the legal principles related in the majority opinion and need not repeat all of them here, except to say that the analysis was thoughtful and erudite. I would emphasize that, in my opinion, the most important principle in this case is, "The determination of what constitutes a substantial step is left to the province of the jury." Newhoff v. State, 708 N.E.2d 889, 893 (Ind.Ct.App.1999). Our criminal attempt law allows "some preventive action by police and courts to stop the criminal effort at an earlier stage, thereby minimizing the risk of substantive harm without providing immunity for the offender." Zickefoose v. State, 270 Ind. 618, 622, 388 N.E.2d 507, 509 (1979).

What constitutes a substantial step towards murder is, as the majority points out, usually litigated when a direct attempt is made to take a life. We all could agree that a shot and a miss, a stabbing or shooting that does not result in death, or similar acts push the attempt "needle" to guilty beyond a reasonable doubt. See, e.9., Bethel v. State, 730 N.E.2d 1242 (Ind.2000), Harris v. State, 425 N.E.2d 112 (Ind.1981). This case presents a unique fact pattern unlike those in any reported Indiana case concerning attempted murder.

The majority recognizes and concedes that the severity and gravity of the crime, here attempted murder, "weighs in favor of affirming Collier's conviction." Op. p. 345 (citing Ward v. State, 528 N.E.2d 52, 54 (Ind.1988)). They do not affirm, however. Part of the reason for not doing so is because of our supreme court's recognition, in the context of jury instructions, "Attempted murder is a special case, deserving special treatment." Richeson v. State, 704 N.E.2d 1008, 1010 (Ind.1998). The flip side of this argument is that attempted murder is the only felony in Indiana for which the punishment is less than what may be imposed for the completed crime. See Ind.Code § 85-41-5-l(a). A person convicted of attempted Class A felony child molesting can be sentenced from twenty to fifty years, the same as a person convicted of completed Class A felony child molesting. See I.C. §§ 35-50-2-1(a), 85-50-24. By contrast, a person convicted of murder can be sentenced in a range of forty-five to sixty-five years, but a person convicted of attempted *352murder can only be sentenced in the Class A felony range of twenty to fifty years. See 1.C. §§ 35-50-2-8, 35-50-2-4. Unlike the majority, I would not extend our supreme court's "special treatment" of attempted murder cases to sufficiency of the evidence questions.1 There is no reason to treat a defendant convicted of attempted murder differently. from a defendant con-viected of any other Class A felony attempted crime.

Some guidance from the Model Penal Code, upon which Indiana's attempt law is based, is instructive, as the majority recognizes. I agree with the majority's citation to section 5.01(2) of the Code, which lists several examples of conduct that, if strongly corroborative of the actor's criminal purpose, should be deemed sufficient as a matter of law to constitute a substantial step toward committing a crime. I also agree with the majority that Collier's conduct falls within at least three of those explicit examples: lying in wait for the victim, Nancy; reconnoitering the place contemplated for the commission of the crime, the hospital; and possession of materials to be employed in the commission of the erime, a box cutter and an ice pick, at or near the place contemplated for its commission, the hospital. I disagree, of course, with the majority's conclusion that these factors are not strongly corroborative of Collier's criminal purpose.

The majority is correct when it states, "we must necessarily evaluate any statements a defendant may have made together with his conduct in order to determine whether that which he has done strongly corroborates that which he said he would do." Op. p. 847. After making this observation, however, I submit that the majority fails to follow it, especially when it diseuss-es the lack of immediate danger presented by Collier's possession of an ice pick and box cutter without mentioning his stated intention to stab Nancy in the heart and cut her throat. Our case law strongly suggests that clear statements of intent can support eriminal attempt convictions, even where the conduct at issue is by itself perfectly legal and does not pose an immediate threat of harm to the intended victim.

For example, in Johnston v. State, 541 N.E.2d 514 (Ind.1989), the defendant was convicted of three counts of attempted child molesting. The evidence supporting the convictions was that the defendant had told the parents of three children that he wanted to molest them, and then went to the parents' house with sexual devices, lubricants, and sedatives to give to the children; there was no evidence that the parents ever actually intended to allow the defendant to molest their children. Our supreme court affirmed, finding sufficient evidence of the defendant's intent to molest the three children and that he had taken a substantial step towards committing the crimes. The court observed,

Appellant clearly stated his intentions to the parents of the children. The fact that he approached the parents with a bag of paraphernalia which he stated he intended to use in his molestation of the children and the fact that he gave the parents specific instructions as to how the children were to be prepared for the *353molestation is evidence which supports the verdict of the jury.

Id. at 517. Our supreme court believed it was necessary and proper to consider what the defendant had done in conjunction with his stated intentions prior to performing those acts. The fact that the defendant's actions by themselves were not illegal and posed no actual imminent threat to the children was not enough for the defendant to escape criminal liability for attempted child molesting.

Likewise, here I conclude that Collier's actions are strongly corroborative of his intent as revealed in his statements to Cameron. Those statements included, immediately before going to the hospital, that he was going to kill Naney "tonight" by stabbing her in the heart and cutting her throat, and giving instructions to Cameron as to how to take care of the family pets. Collier's conduct included collecting a box cutter, ice pick, and a pair of binoculars, and driving to the hospital and parking in an area where he could see the only exit persons leaving the hospital could use at the time Nancy was expected to leave. I agree that in isolation possessing a box cutter, ice pick, and pair of binoculars might appear "innocent" and not much of a threat, but not when combined with Collier's stated intention to kill Nancy by cutting and stabbing her and Collier's having parked across the street from the hospital exit while there was a protective order in effect requiring Collier to stay away from the hospital Additionally, although ice picks and box cutters have legitimate uses other than as weapons, under these cireumstances there is no indication that Collier had any legitimate reason for possessing the box cutter and ice pick, such as that he intended to open cardboard boxes or go ice fishing. This is especially true in light of the evidence that Collier did not usually have these items in his truck, but specifically collected them and placed them in his truck before driving to the hospital.

I also disagree that because Collier was passed out asleep when police arrived that his conduct before passing out should be disqualified as strongly corroborative of his criminal intent. Was he dozing until he knew Nancy was scheduled to get off work? Did his ingestion of aleohol overtake him?2 Does it legally make any difference? What if police, properly warned, had interrupted Collier as he drove into the parking lot? Would Collier be more or less culpable if he were awake? We cannot answer these questions with certainty, but, to me, they are legally of little consequence. The law "focuses on the substantial step that the defendant has completed, not on what was left undone." Zickefoose, 270 Ind. at 623, 388 N.E.2d at 510. Also, "It is not necessary that there be a present ability to complete the crime ...." Id. Obviously, Collier could not have completed the crime while asleep in his truck, but I submit that is of no moment in analyzing whether he took a substantial step toward murdering Naney.

I also am not persuaded by the majority's attempt to distinguish or discredit Hampton v. State, 468 N.E.2d 1077 (Ind.Ct.App.1984), a case where a would-be robber waited outside a restaurant while armed and wearing a ski mask but never actually entered the restaurant. First, although our supreme court later did de-seribe the facts in Hampton as "flimsy," it in no way indicated that the case was incorrectly decided but instead cited it

*354with apparent approval as support for affirming the conviction before it. See State v. Van Cleave, 674 N.E.2d 1293, 1304 (Ind.1996). Second, as I have discussed, I believe the fact that Collier was asleep in his truck is of no legal significance. Third, although Collier made no post-arrest confession to the police, he did make pre-arrest statements to Cameron clearly delineating his intent. Finally, the fact that Collier made no physical progress toward murder after arriving at the hospital is not significant because it is reasonable to infer from where Collier parked and his possession of binoculars that he intended to wait until Nancy left the hospital before attacking her. Therefore, I strongly disagree with the majority that Hampton "weighs in favor of reversing Collier's conviction." Op. p. 350. I believe the opposite is true.

I appreciate that the conduct by Collier could have been charged, as the majority suggests, as stalking or invasion of privacy. However, the prosecutorial decision was to charge attempted murder only and to try to prove that charge to a jury. That decision resulted in a guilty verdict. Where a defendant's conduct arguably violates more than one criminal statute, the prosecutor has the discretion to decide whether to prosecute and under what statute or statutes to file charges. Lampitok v. State, 817 N.E.2d 630, 636 (Ind.Ct.App.2004), trans. denied.

Were I the prosecutor in Steuben County, I might have exercised my discretion differently when charging Collier. I am not. Additionally, had I been a juror in this case, it is possible I could have been persuaded to vote for Collier's acquittal of attempted murder. I was not. The bottom line is that this jury, on these facts, returned a guilty verdict. To conclude otherwise amounts to infringing on this prosecutor's charging discretion and this jury's exclusive prerogative to weigh the evidence. This is a close case, and my dissent should not be taken to mean that in another case, with different facts and legal issues, that I necessarily would vote to sustain an attempted murder conviction. I do so here.

. Additionally, the degree to which a defendant has taken a "substantial step" toward committing attempted murder is something that a trial court may take into consideration in determining the defendant's sentence because it reflects the "nature and circumstances of the crime" under Indiana Code Section 35-38-1-7.1(a) and something that appellate courts may take into consideration in determining whether a sentence is "inappropriate" because it reflects the "nature of the offense" under Indiana Appellate Rule 7(B).

. Collier does not claim he was involuntarily intoxicated, and voluntary intoxication is no longer a defense in Indiana to a criminal charge. See Sanchez v. State, 749 N.E.2d 509, 517 (Ind.2001). He also does not argue that he voluntarily abandoned any effort to commit a crime. See I.C. § 35-41-3-10.