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Hopkins v. State

Court: Indiana Supreme Court
Date filed: 2003-02-10
Citations: 782 N.E.2d 988
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24 Citing Cases


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.