Attorney for Appellant
Lesa Lux Johnson
Indianapolis, IN
Attorneys for Appellee
Steve Carter
Attorney General of Indiana
Adam Dulik
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
ANTHONY HOPKINS,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 49-S00-0011-CR-617
)
)
)
)
)
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APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Robyn Moberly, judge
Cause No. 49G02-99003-CF-043913
ON DIRECT APPEAL
December 20, 2001
SULLIVAN, Justice.
Defendant Anthony Hopkins was convicted of two counts each of
attempted murder, robbery, and confinement for his participation in a
robbery and shooting. We reverse one attempted murder conviction because
the jury was not adequately instructed on the requisite intent to kill
needed to be guilty of that crime. In affirming all the other convictions,
we find the evidence sufficient to support one of the attempted murder
counts and no double jeopardy bar to the robbery and confinement
convictions.
Background
The facts most favorable to the judgment indicated that in the early
morning of March 9, 1999, the victims, George Martinez and Paula McCarty,
were on their way to Martinez’s home. They encountered Defendant and his
brother, Edward, who were stranded on the roadside attempting to get a jump
from another car. Martinez and Defendant had engaged in drug transactions
in the past. Martinez and McCarty stopped the car and assisted Defendant
and his brother. Defendant told Martinez that his car had been breaking
down. Martinez told Defendant that if he had anything he did not want to
get caught with, they could stop by his house and drop it off.
Soon after Martinez and McCarty returned home, Defendant and Edward
showed up. Defendant asked Martinez to hold onto his gun for him. About
fifteen minutes later, Defendant and Edward returned. When Martinez
returned Defendant’s gun, Defendant locked the door and then pointed the
gun at Martinez and ordered Martinez and McCarty into the basement and told
them to take their clothes off. McCarty resisted and Defendant hit her on
the head with the gun. Once in the basement, Defendant took $4,500 from
Martinez and $40 from McCarty. Defendant said that that was not enough,
gave Edward the gun, and went upstairs to look for drugs and more money.
Defendant found approximately two or three pounds of marijuana upstairs.
Defendant yelled, “Where’s it at?,” as he searched the house.
While Defendant was still upstairs, Edward shot Martinez in the
shoulder as Martinez and McCarty both pleaded for their lives. Edward was
about three feet away and the bullet entered Martinez’s shoulder,
ricocheted into his neck, hit his carotid artery, and exited through his
ear. Martinez lost consciousness. McCarty assumed that Martinez was dead,
and testified that she thought Edward had blown the back of Martinez’s head
off. Martinez survived, but was in an intensive care unit for thirteen
days as a result of being shot.
After Edward shot Martinez, Defendant returned to the basement and
took the gun from Edward. Defendant then shot McCarty. As Defendant shot
her, McCarty moved around so that he wouldn’t hit her in the head. When
she fell to the ground she pretended to be dead. Defendant and Edward went
upstairs and left the house. Martinez regained consciousness and they were
able to call for help. McCarty had been shot in the chest, and suffered a
severed spinal cord, punctured lung, paralysis in her arm, and is now
confined to a wheelchair.
Defendant was convicted of two counts of Attempted Murder,[1] two
counts of robbery,[2] two counts of criminal confinement, [3] and one count
of carrying a handgun without a license.[4] Defendant then pled guilty to
being a habitual offender. The trial court sentenced Defendant to 50 years
incarceration for Count I, the attempted murder of McCarty. The trial
court also enhanced the sentence by 20 years under the habitual offender
statute. The trial court sentenced Defendant to 50 years for count II, the
attempted murder of Martinez; 20 years incarceration for counts III and IV,
robbery; and three years incarceration each for the criminal confinement
convictions. The trial court ordered all the terms to run consecutively
for total executed time of 166 years.
Discussion
I
Defendant contends that there was insufficient evidence to convict
him of the attempted murder of Martinez and that, in any event, the trial
court committed fundamental error in erroneously instructing the jury
regarding attempted murder and accomplice liability. (Appellant’s Br. at
7.)
A
As discussed under Background supra, Defendant was convicted of the
attempted murder of Martinez. There is no dispute that Edward, not
Defendant, shot Martinez while Defendant was upstairs searching for money
in drugs. (Appellee’s Br. at 8, n. 2) ("the State presented no evidence at
[trial] that [Defendant] shot Martinez. Instead, all of the evidence
presented at trial shows that Edward shot Martinez.").
Because of the stringent penalties for attempted murder and the
ambiguity often involved in its proof, this court has singled out attempted
murder for special treatment. See Richeson vs. State, 704 N.E.2d 1008
(Ind. 1998). First, a conviction for attempted murder requires proof of
specific intent to kill. Spradlin v. State, 569 N.E.2d 948, 950
(Ind.1991). And where, as here, the State seeks a conviction for attempted
murder on an accomplice liability theory, we have held that its burden of
proof is as follows:
(1) that the accomplice, acting with the specific intent to
kill, took a substantial step toward the commission of murder, and
(2) that the defendant, acting with the specific intent that the
killing occur, knowingly or intentionally aided, induced, or caused
the accomplice to commit the crime of attempted murder.
Bethel v. State, 730 N.E.2d 1242, 1246 (Ind. 2000).
B
The trial court gave the following instructions on accomplice
liability. Instruction 10: “You are instructed that when two or more
persons combine to commit a crime, each is criminally responsible for the
acts of his confederate(s) committed in furtherance of the common design,
the act of one being the act of all.” Instruction 11 read:
A person is responsible for the actions of another person when, either
before or during the commission of a crime, he knowingly aids,
induces, or causes the other person to commit a crime. To aid is to
knowingly support, help, or assist in the commission of a crime.
In order to be held responsible for the action of another, he
need only have knowledge that he is helping in the commission of a
crime. He does not have to personally participate in the commission
of each element of a crime.
Proof of the Defendant’s failure to oppose the commission of a
crime, presence at the crime scene, companionship with the person
committing the offense, and conduct before and after the offense may
be considered in determining whether aiding may be inferred.
(R. at 132.)
C
Here, the trial court failed to instruct the jury regarding specific
intent required of Defendant to establish accomplice liability for
attempted murder. However, Defendant did not object and did not tender a
correct instruction. He therefore waived his right to appeal this issue.
See Brown v. State, 691 N.E.2d 438, 444 (Ind. 1998). In such
circumstances, we will only reverse the trial court if the trial court
committed error that was fundamental. Id. Fundamental error is a
substantial, blatant violation of due process. See Taylor v. State, 717
N.E.2d 90, 93 (Ind. 1999); Brown, 691 N.E.2d at 444. It must be so
prejudicial to the rights of a defendant as to make a fair trial
impossible. See Brown, 691 N.E.2d at 444; Barany v. State, 658 N.E.2d 60,
64 (Ind.1995).
In the past, we have found fundamental error in instructing juries on
the intent required to convict of attempted murder. See Bethel v. State,
730 N.E.2d 1242, 1245 (Ind. 2000); Williams v. State, 737 N.E.2d 734, 740
(Ind. 2000). In other cases, we have found error that did not rise to the
level of fundamental error. See Ramsey v. State, 723, N.E.2d 869, 872-73
(Ind. 2000); Swallows v. State, 674 N.E.2d 1317, 1318 (Ind. 1996); Jackson
v. State, 575 N.E.2d 617, 621 (Ind. 1991). One particular circumstance
where we have found a Spradlin error not to constitute fundamental error is
where the Defendant’s intent was not at issue. In Swallows, for example,
we found that the trial court had not committed fundamental error because
the defense relied on identity, and “The intent of the Defendant was not in
issue.” See Swallows, 674 N.E.2d at 1318.
Here, we find that the trial court clearly erred by failing to
instruct the jury on the specific intent necessary to establish accomplice
liability for attempted murder. Final instructions 10 and 11 informed the
jury of the state of mind that generally is required to convict a defendant
of a crime based on accomplice liability. But these instructions did not
inform the jury that in order to convict, it was required to find that
Defendant intended to kill Martinez when he took the steps that helped
Edward to kill him.
Adding to the strength of Defendant’s claim is the fact that his
intent to kill Martinez was clearly at issue. The Attorney General makes a
very strong argument that Defendant possessed the requisite intent. He
points out that Defendant and Edward seemed to have operated according to
an agreed upon plan. McCarty testified that when Defendant returned to the
basement, he did not seem mad at Edward for shooting Martinez. Indeed,
when Defendant took the gun from Edward and pointed it at McCarty, he
grinned at her as he pulled the trigger.
We agree with the State that it presented sufficient evidence at trial
from which a jury could conclude that Defendant was guilty of attempted
murder Defendant participated in ordering both victims to the basement,
ordering them to strip, and taking their cash. He handed his brother a
handgun while he went upstairs to ransack the house for drugs and/or money.
His brother then, without any new conduct or provocation from either
victim, simply pointed the handgun at Martinez’s head and shot him. When
Defendant returned to the basement, where Martinez was lying on the floor
apparently dead, his brother handed him back the handgun, and Defendant
proceeded without saying anything, and without any new conduct or
provocation from McCarty, to fire the handgun at her face from three feet
away. These circumstances are sufficient to permit a jury to infer beyond
a reasonable doubt that Defendant intended that his brother kill Martinez,
and aided him in the crime.
But because 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. We conclude that, at minimum, the probable impact on the jury
on every material element of the crime of the trial court’s failure to
instruct was not sufficiently minor as not to adversely affect Defendant's
substantial rights. See Ind. Trial Rule 61; Fleener vs. State, 656 N.E.2d
1140, 1141-42 (Ind. 1995).
II
Defendant contends that certain of his convictions violate Indiana’s
prohibition against double jeopardy.[5] Defendant argues that he was
improperly convicted of both robbery and confinement. He also argues that
his convictions for robbery as Class A felonies also violate double
jeopardy.
A
Defendant contends that his convictions for robbery and confinement
violated double jeopardy law. He argues that the confinement was part of
the robbery and therefore the trial court simultaneously charged him for an
offense and a lesser-included offense.
“Indiana’s Double Jeopardy Clause ... prevent[s] the State from being
able to proceed against a person twice for the same criminal
transgression.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999).
Indiana Code § 35-38-1-6 reinforces this rule, forbidding a trial court
from sentencing a defendant for an offense and a lesser-included offense
charged in separate counts. The code directs that “judgment and sentence
may not be entered against the defendant for the included offense.” Id.
Here, defendant’s convictions for confinement and his convictions for
robbery were separate acts. Robbery consists of taking property “by using
or threatening the use of force” or “by putting any person in fear.” See
Ind. Code § 35-42-5-1 (1998). Criminal confinement consists of confining a
person or removing them by fraud, enticement, force, or threat of force
from one place to another. See Ind. Code § 35-42-3-3 (1998).
Confinement is not a lesser-included offense of robbery.
Furthermore, where the confinement of a victim is greater than that which
is inherently necessary to rob them, the confinement, while part of the
robbery, is also a separate criminal transgression.[6] See Harris v.
State, 716 N.E.2d 406, 412 (Ind. 1999) (citing Brown v. State, 671 N.E.2d
401, 410 (Ind.1996)). Here, Defendant’s confinement of his victims
extended well beyond what was necessary to rob them; Defendant and Edward
forced his victims to the basement at gunpoint. Defendant took $4,500 from
Martinez and $40 from McCarty and then went upstairs to search the house.
It was not necessary to force the victims into the basement to rob them.
After initially taking the money, it was not necessary to force them to
stay in the basement as Defendant searched the house. Both Defendant’s
removal of Martinez and McCarty to the basement and the confinement after
robbing them were separate criminal transgressions from the robberies
themselves.
To succeed in his claim of double jeopardy under the Richardson
actual evidence test, the defendant must demonstrate a reasonable
possibility that the jury used the same evidentiary facts to establish the
essential elements of both robbery and confinement. See Richardson, 717
N.E.2d at 53. Obviously, the evidence used to establish the confinement
could not have also proved robbery because it would not have proven the
taking element. More difficult is whether the evidence proving the
essential elements of robbery (knowingly; took property; by fear or
threatened use of force) may have been used also to establish the essential
elements of criminal confinement (knowingly; confine; without consent).
Under the instruction and the evidence presented, the jury
theoretically could have found that the offense of criminal confinement was
committed either (1) when Martinez and McCarty were forced at gunpoint to
go from the kitchen to the basement, (2) when they were forced at gunpoint
to remove their clothes, (3) when they were forced at gunpoint to hand over
money, or (4) when they were thereafter confined in the basement while the
house was being searched. It is only the third of these three events
(where the same evidentiary facts establish both robbery and criminal
confinement) that implicates the Richardson actual evidence test.
However, double jeopardy under this test will be found only when it
is reasonably possible that the jury used the same evidence to establish
two offenses, not when that possibility is speculative or remote. See
Griffin v. State, 717 N.E.2d 73, 89 (Ind. 1999). This Court has determined
the possibility to be remote and speculative and therefore not reasonable
when finding no sufficiently substantial likelihood that the jury used the
same evidentiary facts to establish the essential elements of two offenses.
See Long v. State, 743 N.E.2d 253, 261 (Ind. 2001); Redman.v. State, 743
N.E.2d 263, 268 (Ind. 2001).
Considering the protracted nature of the criminal episode, and
particularly the completed offense of criminal confinement as to each
victim when they were initially ordered at gunpoint into the basement, we
find no sufficient substantial likelihood that the jury based its
determination of guilt on the confinement counts upon the evidence of the
incidental confinement at the moment of the robbery.
B
Defendant argues that his convictions for robbery should be entered
as Class C felonies.
Both Defendant and the State argue this issue on the assumption that
he was convicted of robbery as a Class A felony. Defendant was charged and
convicted of two counts of robbery as Class A felonies and the abstract of
judgment shows the judgment was entered on that basis. However, our
reading of the record indicates that the trial judge meant to enter
judgment on these counts as Class B felonies. We draw this conclusion from
the judge's colloquy with the prosecuting attorney at sentencing, and the
fact that the sentence imposed on these two counts -- 20 years -- is the
maximum sentence authorized for Class B felonies, Ind. Code § 35-50-2-5.
(While we acknowledge that 20 years is also the minimum authorized sentence
for a Class A felony, we find nothing in the record to support a conclusion
that the judge intended to impose the minimum sentence available on any
count.)
We hold that Defendant stands convicted of two counts of robbery as
Class B felonies for which the maximum authorized sentence of 20 years has
been properly imposed.[7]
The apparent reason the trial court sentenced Defendant on robbery as
Class B felonies is because Defendant's robbery convictions could not be
elevated by the same serious bodily injuries that were the basis of the
attempted murder convictions. See Chapman v. State, 719 N.E.2d 1232, 1234
(Ind. 1999). Here (as in Chapman) the State's robbery charges against
Defendant alleged his use of a handgun, the element that permits elevation
of robbery to a Class B felony. As such, Defendant is not entitled to have
the convictions reduced to Class C felonies.
Conclusion
We affirm Defendant's convictions for the attempted murder of McCarty
and on both counts of criminal confinement. We reverse Defendant's
conviction for the attempted murder of Martinez.
We remand to the trial court with the following instructions. First,
the 50-year sentence for the attempted murder of McCarty may be enhanced by
the 20-year habitual offender enhancement. Second, the abstract of
judgment should be corrected to show that judgment has been entered on the
two convictions for robbery as Class B felonies. Third, the abstract of
judgment should also be corrected to show that judgment has been entered on
the two convictions for criminal confinement as Class D felonies.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Ind. Code §§ 35-41-5-1 and 35-42-1-1 (1998).
[2] Id. § 35-42-5-1.
[3] Id. § 35-42-3-3.
[4] Id. § 35-47-2-1.
[5] Defendant also contends that his consecutive sentences violate
Indiana’s consecutive sentencing statute. (Appellant’s Br. at 18.) This
contention is moot given our treatment of the issues discussed in part I
supra and part II-A infra.
[6] Defendant cites Harvey v. State, 719 N.E.2d 406, 411 (Ind. Ct.
App. 1999), in which the Court of Appeals overturned a confinement
conviction because “the force which supported the conviction for robbery
was the same force which created the confinement.” In Harvey, however, the
Court of Appeals also stated that a separate conviction for confinement
would stand where “there is force used beyond that which is inherently
necessary.” Id.
[7] The abstract of judgment also reflects that the convictions for
criminal confinement were entered as Class B felonies. Our reading of the
record, however, indicates that the trial court meant to enter judgment on
those counts as Class D felonies. We hold that Defendant stands convicted
of two counts of criminal confinement as Class D felonies for which the
maximum authorized sentence of three years has been properly imposed.