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Ramsey v. State

Court: Indiana Supreme Court
Date filed: 2000-02-15
Citations: 723 N.E.2d 869
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Attorney for Appellant

Catherine M. Morrison
Wolf & Morrison
Indianapolis, IN



Attorneys for Appellee

Jeffrey A. Modisett
Attorney General of Indiana

Priscilla J. Fossum
Deputy Attorney General
Indianapolis, IN



      IN THE
      INDIANA SUPREME COURT


FAIRLIS RAMSEY,
      Appellant (Defendant below),

      v.

STATE OF INDIANA,
      Appellee (Plaintiff below).



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)     Supreme Court No.
)     49S00-9801-CR-33
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      APPEAL FROM THE MARION SUPERIOR COURT CRIMINAL DIVISION V
      The Honorable William T. Robinette, Judge
      Cause No.  49G05-9612-CF-191000



                              ON DIRECT APPEAL



                              February 15, 2000
SULLIVAN, Justice.

      Defendant  Fairlis  Ramsey  was  convicted  of  attempted  murder  for
shooting his estranged  wife  in  the  head.   He  was  also  adjudicated  a
habitual offender.  He  seeks  to  have  both  adjudications  set  aside  on
grounds that the jury was not properly instructed on  the  intent  necessary
to be guilty of attempted murder.  While the instruction was  defective,  it
adequately informed the jury of  the  law  in  this  regard.   As  such,  we
affirm.

      This Court has  jurisdiction  over  this  direct  appeal  because  the
longest single sentence exceeds fifty years.  Ind. Const.  art.  VII,  '  4;
Ind. Appellate Rule 4(A)(7).


                                 Background


      When Marcia Ramsey left her husband,  Defendant  Fairlis  Ramsey,  she
moved back home with her father, William  Washington.   On  the  evening  of
December 8, 1996, Defendant went to  Mr.  Washington=s  home  and  asked  to
speak to Marcia Ramsey, but was told that she was  not  there.   Eventually,
Marcia=s father let Defendant into the house.

      Marcia came out of her bedroom to talk to Defendant.  Defendant  asked
Marcia when she would move back home but Marcia told him it was too soon  to
talk.  In response, Defendant brandished a handgun, aimed it at Marcia,  and
told her she was coming home with him. Marcia screamed  for  her  father  to
come into the room and tried to run away.  Defendant fired his  handgun  and
Marcia fell to the floor pretending to have  been  shot.   Defendant  walked
over to Marcia, stood over her and fired another  shot  at  her  head.   The
shot grazed Marcia=s head.  Defendant then left the house.

      Police officers were summoned to the house and found Marcia  conscious
but bleeding from a gunshot wound to the top of her head.  On  December  10,
1996, the State charged  Defendant  with  Attempted  Murder,[1]  a  Class  A
felony, and Carrying a Handgun Without a License,[2] a Class A  misdemeanor.
 Later,  on  April  14,  1997,  the  State  filed  an  information  charging
Defendant as  a  habitual  offender.   After  finding  Defendant  guilty  of
attempted murder and carrying a handgun without a  license,  the  jury  also
adjudicated Defendant to be a habitual offender.


      Discussion

      I

      Defendant contends that the trial court improperly instructed the jury
on the crime of attempted murder.  The  trial  court=s  instruction  was  as
follows:
           A person  attempts  to  commit  murder  when,  acting  with  the
      culpability required for commission of Murder, he engages  in  conduct
      that constitutes a substantial step toward commission of Murder; which
      is to knowingly or intentionally kill another human being.  The  crime
      of attempted murder is a Class A felony.

           To convict the defendant of Attempted Murder under Count I,  the
      State must prove each of the following elements:

           1.    The defendant
           2.    knowingly
           3.    with specific intent to kill
           4.    engaged in conduct
           5.    which was a substantial step toward the commission of  the
                 crime of Murder; which is  to  knowingly  or  intentionally
                 kill another human being.

           If the State fails to prove each of these elements,  you  should
      find the defendant not guilty.

           If the  State  does  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.

(R. at 109-10.)[3]
                                      A

      Two  decades  ago,  we  explained  the  importance  of  the  defendant
possessing the specific intent to kill as a necessary element  of  attempted
murder.  Zickefoose v. State,  270  Ind.  618,  622,  388  N.E.2d  507,  510
(1979).  We later explained that
      [t]he attempt must be to effect the proscribed result and  not  merely
      to engage in proscribed conduct.  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) (emphasis added).  In  1991,
we reaffirmed that attempted murder instructions must include  the  required
mens rea of specific intent to kill.  Spradlin v.  State,  569  N.E.2d  948,
950 (Ind. 1991) (holding that to convict a defendant  of  attempted  murder,
the defendant must have  intended  to  kill  the  victim  at  the  time  the
defendant took a substantial step toward committing murder).

      Not long ago, we observed that A[i]t is the higher sentence range  for
attempted murder in combination with the ambiguity involved in the proof  of
that crime that justifies@ what has become known as the ASpradlin rule@  and
Adistinguishes other types  of  attempt  prosecutions  that  involve  either
stringent penalties, or ambiguity, but not both.@  Richeson  v.  State,  704
N.E.2d 1008, 1011  (Ind.  1999)  (footnotes  omitted).   Imposition  of  the
specific intent requirement reduces the risk of a wrongful conviction.   See
Abdul-Wadood  v.  State,  521  N.E.2d  1299,  1300  (Ind.  1988)  (Erroneous
attempted   murder  instruction  created  a  Aserious   risk   of   wrongful
conviction.@).

      We have recently emphasized that Spradlin claim presents the potential
for fundamental error.  Metcalfe v.  State,  715  N.E.2d  1236,  1237  (Ind.
1999) (reversing attempted murder conviction on grounds  of  Spradlin  error
despite defendant=s failure to object to the  instruction  at  trial).   See
also Taylor v. State,  616  N.E.2d  748,  749  (Ind.  1993),  for  a  strong
statement of this principle.[4]


                                      B

      Here the first sentence of the trial court=s instruction is erroneous.
 It says: “A  person  attempts  to  commit  murder  when,  acting  with  the
culpability required for commission of Murder, he engages  in  conduct  that
constitutes a substantial step toward commission  of  Murder;  which  is  to
knowingly or intentionally kill another human being.”  (R. at  109.)   While
the syntax makes the sentence difficult  to  follow,  it  indicates  that  a
“knowing” mens rea is sufficient to establish  guilt  of  attempted  murder.
This error is compounded when the court twice includes the word  Aknowingly@
in its enumeration of the elements of the State=s burden of proof.  We  have
found fundamental error and reversed attempted murder convictions in a  host
of cases where the jury  has  been  instructed  that  it  could  convict  of
attempted murder based on a Aknowing@ mens rea.   Metcalfe,  715  N.E.2d  at
1237; Wilson v. State, 644 N.E.2d 555 (Ind. 1994);  Beasley  v.  State,  643
N.E.2d 346 (Ind. 1994); Greer v. State, 643 N.E.2d 324 (Ind. 1994);  Simmons
v. State, 642 N.E.2d 511 (Ind. 1994); Taylor, 616  N.E.2d  748;  Woodcox  v.
State, 591 N.E.2d 1019 (Ind. 1992).

      The trial court should not  have  included  the  word  Aknowingly@  in
either the first sentence or the enumerated  elements.   But  this  language
was not objected to and we narrowly conclude that no fundamental  error  has
been established.  First,  despite  the  instruction=s  defects,  the  trial
court enumerated Aspecific intent to  kill@  among  the  elements  that  the
State was required to prove beyond a reasonable doubt.   Second,  the  trial
court read the jury the charging information which contains the proper  mens
rea.[5]  Because the correct mens rea was enumerated both as an  element  in
the charging instrument and as an element that the  State  was  required  to
prove beyond a reasonable doubt, we  believe  that  the  jury  instructions,
taken as a whole, sufficiently informed the jury of the  State=s  burden  of
proving that the Defendant specifically intended to kill  the  victim.   And
while the presence of the Aknowingly@ language is highly  problematic,  this
result does comport with three of our  post-Spradlin  decisions:  Yerden  v.
State, 682 N.E.2d 1283 (Ind. 1997); Greenlee v. State, 655 N.E.2d 488  (Ind.
1995); and Price v. State, 591 N.E.2d 1027 (Ind. 1992).[6]
                                     II

      Ramsey also argues that  the  30-year  habitual  offender  enhancement
imposed upon him should be  vacated  because  the  Spradlin  error  asserted
supra renders the underlying attempted murder conviction  invalid.   Because
we find no reversible error in that regard and because  Defendant  makes  no
other viable argument concerning  the  habitual  offender  enhancement,  the
enhancement is affirmed.

      Conclusion

      We affirm the judgment of the trial court.

      SHEPARD, C.J., and BOEHM and RUCKER, JJ., concur.
      DICKSON, J., concurs in result without separate opinion.
-----------------------
      [1] Ind. Code ' 35-41-5-1 (1993).

      [2] Id. '' 35-47-2-1 and 35-47-2-23 (Supp. 1995).

      [3] The trial court also read Instruction No. 15 to the jury:
           A person engages in conduct Aintentionally@ if, when he  engages
      in the conduct, it is his conscious objective to do so.
           A person engages in conduct Aknowingly@ if, when he  engages  in
      the conduct, he is aware of a high probability that he is doing so.
           You  are  instructed  that  knowledge  and  intent,  which   are
      essential elements to be proved herein, may be inferred from the facts
      or circumstances as shown by the evidence.
Id. (R. at 123.)


      [4] Metcalfe did point out that
      [i]nstances of Spradlin error are not per se  reversible.  Indeed,  we
      have held in some cases,  typically  post-conviction  relief  appeals,
      that error of this sort was not fundamental especially when the intent
      of the perpetrator was not a central issue at trial, see  Swallows  v.
      State, 674  N.E.2d  1317  (Ind.  1996),  or  if  the  wording  of  the
      instruction sufficiently suggested the requirement of intent to  kill,
      Jackson v. State, 575 N.E.2d 617, 621 (Ind. 1991).
Metcalfe, 715 N.E.2d at 1237.  As in Metcalfe, Defendant=s  intent  in  this
case is squarely at issue.

      [5] The charging information read: AFairlis G.  Ramsey,  on  or  about
December 8, 1996, did attempt to commit the crime of Murder which  is,  with
intent to kill, Fairlis G. Ramsey did shoot a handgun at and against  Marcia
Ramsey, resulting in gunshot wounds to the  head  of  Marcia  Ramsey,  which
constituted a substantial step  toward  the  commission  of  said  crime  of
Murder.@  (R. at 106.)

      [6] In Yerden v. State, 682 N.E.2d 1283 (Ind.  1997),  we  found  that
while the enumerated elements  were  erroneous,  there  was  no  fundamental
error.  The last two sentences of the attempted murder instruction  required
that the defendant Amust have had specific intent to  commit  murder.@   Id.
at 1285.  On this basis we found that, taken as a  whole,  all  instructions
informed the jury that defendant had to have the intent to kill the  victim.
 In Greenlee v. State,  655  N.E.2d  488  (Ind.  1995),  we  also  found  no
fundamental error.  There  the  charging  information  essentially  included
intent to kill as an  element.   Coupled  with  the  fact  that  defendant=s
instructions  mentioned  intent  to  kill,  intent  to  commit  murder,  and
specific intent at three different  points,  we  found  that  the  jury  was
adequately informed of the Spradlin rule.  In Price  v.  State,  591  N.E.2d
1027 (Ind. 1992), the jury was read the charging information which  included
intent to kill language.  Again we found no  fundamental  error  on  grounds
that the instructions taken as a whole succeeded in informing the jury  that
intent to kill is an element of the crime of attempted murder.