Attorney for Appellant
Stephen Bower
Cohen and Thiros
Merrillville, IN
Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Thomas D. Perkins
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
RICHARD CALVIN WILLIAMS, JR.,
Appellant (Petitioner below),
v.
STATE OF INDIANA,
Appellee (Respondent below).
)
) Supreme Court No.
) 45S03-0011-PC-618
)
) Court of Appeals No.
) 45A03-9807-PC-299
)
)
)
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable James E. Letsinger, Judge
Cause No. 45G02-9102-CF-00030
ON PETITION TO TRANSFER
November 2, 2000
SULLIVAN, Justice.
Richard Calvin Williams, Jr., was convicted of attempted murder as an
accomplice. For the reasons discussed in our recent decision, Bethel v.
State, the jury instruction used at trial on the intent necessary to be
convicted of attempted murder as an accomplice violated the rule of
Spradlin v. State. We find Williams is entitled to the post-conviction
relief he seeks.
Background
On the afternoon of February 17, 1991, Richard Calvin Williams was
driving a Geo Tracker through Hammond, Indiana. His brother-in-law, Albert
Gaines, was in the front passenger seat, and a minor, David Allen, was in
the back seat.[1] Gaines, testifying for the State, stated that at some
point a pickup truck, traveling in the opposite direction, swerved at them
and the driver called them “niggers.”
Williams turned the Geo around eventually catching up to the truck,
which was driven by Scott Spotten. Williams said to Allen, “give me my
gauge,” referring to a 12-gauge pump shotgun that Williams kept in the back
of the Geo. According to Gaines, Allen picked up the shotgun and said,
“‘I’ll do it,’ and you know, immediately shot.” (R. at 223: “We had no
idea he was going to shoot the gauge for real.”). Gaines then testified
inconsistently as to how much time elapsed between the first and a second
shot.
Gaines and other witnesses also testified inconsistently as to
whether the two vehicles were stopped or moving when the shooting occurred.
(This testimony was important in establishing the driver’s (i.e.,
Williams’s) intent to kill Scott Spotten. See infra note 5.) Gaines
ultimately acknowledged that he could not recall whether the vehicles were
stopped side-by-side at a traffic light or traveling down the street. (R.
at 269: Q: “Do you recall or if I were to suggest to you that the shooting
did not take place at the light, would you dispute that?” A: “No, I
wouldn’t.” Q: “Okay. Exactly where the shooting took place, you really do
not know, do you?” A: “Not exactly, no.” Q: “Okay. All you know is that
the shooting took place?” A: “By the light somewhere, yes.”).
The only other witness to the shooting, Mr. Amin, a United States
postal worker, observed the shooting as he stood nearby on the street. His
testimony throughout was that the shooting occurred as the vehicles were
stopped in the middle of the street with their engines running.[2]
Finally, a crime scene technician testified that in his opinion the
vehicles were moving when the shots were fired, but defense counsel pointed
out on re-cross that the technician’s original report stated the vehicles
were “either stopped or in front of 833 Sibley Street.” Neither Williams
nor Allen, the shooter, testified.
After the shooting, it was undisputed that Williams quickly drove to
his home in Gary, Indiana, and parked the Geo in the garage. Williams then
switched the convertible top from black to white. Believing that Allen
would be the only one charged as the shooter, Gaines told police about the
incident the next day.
On February 20, 1991, Williams was charged with the attempted
murder[3] of Scott Spotten. On November 7, 1991, a jury convicted Williams
and he was sentenced to 20 years in prison.
Williams appealed his conviction, claiming, inter alia, that the
trial court committed fundamental error[4] in not instructing the jury
regarding the elements of attempted murder. The Court of Appeals affirmed
his conviction. Williams v. State, No. 45A03-9210-CR-328 (Ind. Ct. App.
June 17, 1993) (mem.). This Court denied transfer on November 4, 1993,
thus ending Williams’s direct appeal. [5]
On January 19, 1995, Williams filed his amended petition for post-
conviction relief again claiming fundamental error in the attempted murder
instruction. In his petition, Williams cited two decisions from this Court
where we found fundamental error in an identical instruction.[6] In
denying the petition for post-conviction relief, the post-conviction court
turned to the Court of Appeals’s previous ruling on the issue of
fundamental error and determined that Williams’s claim was res judicata.
On August 10, 1999, the Court of Appeals affirmed the post-conviction
trial court’s denial of Williams’s petition for post-conviction relief.
Williams v. State, 715 N.E.2d 882, 888 (Ind. Ct. App. 1999). The Court of
Appeals acknowledged that it had been incorrect to reject Williams’s
Spradlin claim on direct appeal, but it nevertheless held that Williams was
not entitled to relief because, as an accomplice, Williams’s “intent was
not an issue,” id., and so the Spradlin rule was not implicated.
Discussion
I
On April 15, 1991, this Court issued its now familiar decision in
Spradlin v. State, 569 N.E.2d 948 (Ind. 1991). In Spradlin, we established
that it was reversible error for a trial court to instruct a jury that a
“knowing” mens rea was sufficient to establish guilt of attempted murder.
Id. at 951.[7]
Notwithstanding our directive in Spradlin, the trial court used this
defective attempted murder instruction – containing the problematic
“knowingly or intentionally” conjunctive – nearly seven months later in
Williams’s November 1991 trial. The attempted murder instruction read as
follows:
A person who knowingly or intentionally kills another human being
commits murder, a felony. A person attempts to commit a crime when,
acting with the culpability required for commission of the crime, he
engages in conduct that constitutes a substantial step toward
commission of the crime. An attempt to commit murder is a Class A
felony.
To convict the defendant of the crime of attempted murder, the State
must have proved the following elements:
1. The defendant knowingly or intentionally
2. took a substantial step to accomplish
3. a knowing or intentional killing of Scott Spotten.
(emphases added).
We have consistently held that this form of attempted murder
instruction misinforms a jury as to the appropriate mens rea and thus
constitutes fundamental error. See, e.g., Metcalfe v. State, 715 N.E.2d
1236, 1237 (Ind. 1999) (Fundamental Spradlin error consisted of an
instruction informing the jury that a “knowingly” mens rea was sufficient
to establish guilt of attempted murder.); Wilson v. State, 644 N.E.2d 555,
556 (Ind. 1994) (Fundamental Spradlin error consisted of a an instruction
informing the jury that a “knowingly or intentionally” mens rea was
sufficient to establish guilt of attempted murder.); Beasley v. State, 643
N.E.2d 346, 347 (Ind. 1994) (“knowingly or intentionally”); Greer v. State,
643 N.E.2d 324, 325 (Ind. 1994) (“knowingly or intentionally”); Simmons v.
State, 642 N.E.2d 511, 511 (Ind. 1994) (“knowingly or intentionally”);
Taylor v. State, 616 N.E.2d 748, 749 (Ind. 1993) (“knowingly”); Hill v.
State, 615 N.E.2d 97, 98 (Ind. 1993) (“knowingly or intentionally”);
Woodcox v. State, 591 N.E.2d 1019, 1023 (Ind. 1992) (“knowingly”).
And although there have been cases where, despite clear Spradlin
error, we did not vacate an attempted murder conviction because (i) the
intent of the perpetrator was not a central issue at trial;[8] (ii) the
instructions as a whole sufficiently suggested the requirement of intent to
kill;[9] or (iii) both,[10] that is not the case here.
To the contrary, Williams’s intent as a non-shooting accomplice was
seriously disputed at trial, where the jury heard evidence that (1) no one
was aware that Allen would impulsively fire the shotgun from the backseat;
(2) the two shotgun blasts were delivered in rapid succession; and (3) the
vehicles were idle and stopped on the side of the street. Moreover,
nowhere in the instructions was there any statement sufficiently informing
the jury of the State’s burden of proving that Williams specifically
intended to kill Scott Spotten.[11]
Despite this rather straightforward case of reversible Spradlin
error, the Court of Appeals erroneously concluded in June of 1993 that no
fundamental error had occurred. Williams v. State, No. 45A03-9210-CR-328
(Ind. Ct. App. June 17, 1993) (mem.), transfer denied. We can only
attribute this incorrect ruling – as we have on other occasions – to the
admitted confusion surrounding the proper standard for attempted murder
jury instructions, which existed during this time. See, e.g., Arthur v.
State, 663 N.E.2d 529, 531 (Ind. 1996) (“At the time of the first Court of
Appeals decision, this court had decided Spradlin but had not expressly
overruled Worley and Santana. Thus, some confusion remained on the
standard for attempted murder jury instructions.”).
We do not revisit these previous rulings as to fundamental error for
improperly instructing the jury on the elements of attempted murder and the
Court of Appeals’s application of the doctrine of res judicata to them.
Instead, we address Williams’s continuing argument – made in both his
direct and post-conviction appeals – that the jury instructions failed “to
address the legal issue of accomplice liability in an attempted murder
prosecution,”[12] and Court of Appeals holding on this issue that
“Williams’ intent was not an issue because he was convicted as an
accomplice.” Williams, 715 N.E.2d at 888.
II
Earlier this year – after the Court of Appeals’s decision in this
case – we explained for the first time how Spradlin applies to persons
“convict[ed] for the offense of aiding an attempted murder.” Bethel v.
State, 730 N.E.2d 1242, 1246 (Ind. 2000) (emphasis added).
In Bethel, a jury found the defendant guilty of multiple counts of
attempted robbery, robbery, and attempted murder for his participation in a
two-man crime spree. On appeal, Bethel challenged the sufficiency of the
evidence supporting two of his four attempted murder convictions,
contending that as a non-shooting accomplice, he did not knowingly or
intentionally aide, induce, or cause the principal shooter to attempt
either murder.[13]
In reversing and vacating both attempted murder convictions, we
employed a two-part analysis. First, we determined whether the evidence
was sufficient to establish that the principal, “acting with the intent to
kill, took a substantial step toward killing” either crime spree victim.
Id. at 1245. As to the first victim, we found that the principal’s intent
to kill was not established beyond a reasonable doubt, thus Bethel’s
attempted murder conviction under an accomplice liability theory likewise
could not stand.
We did, however, find sufficient evidence of the principal’s intent
to kill the second crime spree victim, thereby continuing on to the second
half of the required two-part analysis:
Because we find sufficient evidence of [the principal’s] intent
to kill [the second victim], we must consider the defendant’s claim
that the evidence was insufficient to prove that he knowingly or
intentionally aided, induced, or caused [the principal] to commit the
attempted murder of [the second victim]. The accomplice liability
statute permits a defendant to be found guilty as an accomplice
without the jury finding that the defendant committed every element of
the crime when that defendant “knowingly or intentionally aids,
induces, or causes another person to commit an offense.” Ind. Code §
35-41-2-4. For many crimes, it is sufficient to prove that a defendant
either “knowingly” or “intentionally” performed a prohibited act. It
is well settled, however, that a conviction for attempted murder
requires proof of specific intent to kill. See Spradlin v. State, 569
N.E.2d 948, 950 (Ind. 1991). The issue becomes then, what must be
proven in order to show that the defendant “knowingly or
intentionally” aided the commission of a crime requiring specific
intent for conviction?
In light of Spradlin’s requirement that attempted murder be
established by proof of specific intent to kill, we find that, in
order to establish that a defendant aided, induced, or caused an
accomplice to commit attempted murder, the State must prove that the
defendant, with the specific intent that the killing occur, knowingly
or intentionally aided, induced, or caused [the principal] to commit
the crime of attempted murder. Thus, to convict for the offense of
aiding an attempted murder, the State must prove: (1) that the
[principal], 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 [principal]
to commit the crime of attempted murder.
Id. at 1245-46 (emphases added).
Therefore, the jury in Williams’s case was misinformed in two
critical respects, the combination of which unacceptably lessened the
State’s burden of proof. First and foremost, the jury was not properly
instructed as to the basic elements of attempted murder. This issue has
been argued and decided adverse to Williams (albeit wrongly) such that it
is res judicata. Williams v. State, No. 45A03-9210-CR-328, slip op. at 5
(Ind. Ct. App. June 17, 1993) (mem.) (“Accordingly, the instructions in the
present case adequately included a finding that Williams, not just [the
principal,] Allen, had a specific intent to kill the victim. No error
occurred.”).
Second, the jury was never instructed that it had to find that
Williams, as a non-shooting accomplice, acted with the specific intent to
kill the victim. Instead, it was instructed that to find Williams guilty
of aiding an attempted murder, it need only determine that he “knowingly or
intentionally aid[ed], induce[d], or cause[d] another person to commit” the
crime of attempted murder. (R. at 58; Final Instruction No. 8) (emphasis
added). While this was a correct statement of the law as it generally
pertained to accomplice liability, it fell significantly short of
adequately instructing the jury in this case given that the trial court had
already failed to instruct on the basic elements of attempted murder.
In the typical attempted murder prosecution involving an armed robbery
or some other criminal enterprise gone awry, the accomplice “is criminally
liable for the acts done by [the accomplice’s] confederates which were a
probable and natural consequence of their common plan,” and the intent to
kill is properly inferred from the knife-wielding or shooting principal.
Bonds v. State, 721 N.E.2d 1238, 1242 (Ind. 1999) (quoting Edgecomb v.
State, 673 N.E.2d 1185, 1193 (Ind. 1986)). But this is not the typical
case. Here, a chance encounter led to the spontaneous firing of two shots
from the back seat of Williams’s automobile, and the instructions as a
whole never informed the jury that either the backseat principal or
Williams had to possess the specific intent to kill the victim.[14]
We have recognized the inherent ambiguity in attempted murder
prosecutions and the need to instruct juries precisely as to the correct
level of culpability. Richeson v. State, 704 N.E.2d 1008, 1010 (Ind. 1998)
(“In many attempted murder cases, however, the victim, the result, or both,
are more difficult to ascertain. A drive-by shooting is the paradigm
problematic attempted murder case. In such cases it is often unclear
whether the defendant intended to murder or to batter, whether he knew of a
high probability of death or a touching, or whether he simply recklessly
disregarded either.”). And both the level of ambiguity and the
corresponding need for precise jury instructions significantly increase in
a prosecution for aiding an attempted murder.
Williams was entitled to have the jury instructed correctly on an
essential rule of law. See Hill v. State, 615 N.E.2d 97, 99 (Ind. 1993).
And as Bethel reinforces, the requirements of Spradlin equally apply to
those on trial for attempted murder and for “aiding an attempted murder.”
Bethel, 730 N.E.2d at 1246.
Although Williams has consistently argued that his intent as an
accomplice could not be imputed from the principal’s actions given that
“[n]one of the instructions tell the jury that Williams must have the
specific intent to kill,” see Appellant’s Brief at 13 (Direct Appeal)
(filed Dec. 23, 1992), the Court of Appeals never expressly ruled on this
issue in the course of deciding Williams’s direct appeal. See Williams v.
State, No. 45A03-9210-CR-328, slip op. at 5.[15] And in retrospect, the
Court of Appeals could not have issued a secondary ruling – incorrect or
otherwise – addressing the requirement of specific intent in the accomplice
liability instructions given that the court had failed to recognize
Spradlin as controlling precedent for requiring specific intent in the
attempted murder instruction.
It is difficult if not impossible to see how Williams received a fair
trial when the jury could have convicted him of knowingly (rather than
intentionally) aiding the principal in knowingly (rather than
intentionally) attempting to kill Scott Spotten. As such, we now hold that
the trial court committed fundamental error in not instructing the jury
that it had to find that Williams possessed the specific intent to kill
when he knowingly or intentionally aided, induced, or caused his backseat
accomplice to commit the crime of attempted murder. Cf. Bethel, 730 N.E.2d
at 1246 (“In light of Spradlin’s requirement that attempted murder be
established by proof of specific intent to kill, we find that, in order to
establish that a defendant aided, induced, or caused an accomplice to
commit attempted murder, the State must prove that the defendant, with the
specific intent that the killing occur, knowingly or intentionally aided,
induced, or caused his accomplice to commit the crime of attempted
murder.”).[16]
Because we cannot say that Williams did not suffer harm as a result of
the compound error associated with not instructing the jury as to specific
intent of either principal or accomplice, we vacate Williams’s conviction
under an accomplice liability theory for attempted murder.
Conclusion
Accordingly, we now grant transfer, vacate the opinion of the
Court of Appeals, reverse the post-conviction trial court, grant Williams’s
petition for post-conviction relief, and remand to the original trial court
for a new trial.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] The record on direct appeal is cited as “(R. at __)” whereas the
post-conviction record is cited as “(PC R. at __).”
[2] Amin testified on direct as follows:
Q: Where did you first notice the vehicles, where did they first
come to your attention?
A: Well, see, I was about four houses down from where they were
parked. I just seen them you know.
Q: They were parked or moving?
A: They were parked.
Q: Parked?
A: Not parked, but they were just still, but I could seen them
running.
* * *
Q: Okay. Why don’t you tell me when and if you were able to see
who was driving that Geo Tracker?
A: Well, I had heard like two pops, like pop-pop. And then the Geo
took off and when it took off, it was like a stop sign right on
that corner.
(R. at 143-44.)
[3] Ind. Code § 35-42-1-1 (1988).
[4] Because he did not object to any of the instructions given at
trial, Williams couched his challenge on direct appeal in terms of
fundamental error to avoid waiver of the issue.
[5] The Court of Appeals’s memorandum decision sided with the State in
finding the evidence adduced at trial sufficient to establish that Williams
possessed the specific intent to kill Spotten:
Here, the evidence demonstrates that Williams turned his vehicle
around to pursue Spotten. He then requested his gun. After Allen
stated that he would “do it,” Williams drove his vehicle at a pace to
remain parallel with Spotten’s vehicle. Once Allen had shot at
Spotten, Williams did not brake or request that Allen stop his
actions. Instead, Williams continued to drive at the same pace while
Allen pumped the gun a second time and shot Spotten. After the
shooting, Williams did not stop to assist Spotten. Rather, Williams
drove away from the scene quickly. He parked the Geo in the garage
and switched the convertible top to one of another color.
. . . .
The evidence is sufficient to support the conviction.
Williams v. State, No. 45A03-9210-CR-328, slip op. at 5-6 (emphasis added).
[6] Those decisions were Spradlin v. State, 569 N.E.2d 948 (Ind. 1991)
(granting relief on direct appeal), and Simmons v. State, 642 N.E.2d 511
(Ind. 1994) (granting post-conviction relief). Both Spradlin and Simmons
relied on our earlier decisions in Zickefoose v. State, 270 Ind. 618, 622,
388 N.E.2d 507, 510 (1979) (granting relief on direct appeal), and Smith v.
State, 459 N.E.2d 355, 358 (Ind. 1984) (granting relief on direct appeal).
[7] The trial court in Spradlin instructed the jury as follows:
To convict the defendants, the State must have proved each of
the following elements:
The defendants
1. knowingly or intentionally
2. strike, stab and cut the body of Robert Grubbs
3. that the conduct was a substantial step toward the commission
of
the crime of murder.
If the State failed to prove each of these elements, you should
find
the defendants not guilty.
If the State did prove each of these elements beyond a
reasonable doubt, you should find the defendants guilty of the crime
of Attempted Murder, a Class A felony.
Id. at 950-51 (emphasis added).
[8] See, e.g., Swallows v. State, 674 N.E.2d 1317 (Ind. 1996).
[9] See, e.g., Ramsey v. State, 723 N.E.2d 869, 872-73 (Ind. 2000).
[10] See, e.g., Jackson v. State, 575 N.E.2d 617, 621 (Ind. 1991).
[11] The information, which charged Williams as the principal, was
also read to the jury and likewise failed to instruct the jury as to the
proper mens rea. (R. at 9; “[Officer] Ernest Macielewicz, upon oath, says
that on or about February 17, 1991, in the County of Lake, State of
Indiana, Richard Williams, Jr. did knowingly or intentionally attempt to
kill Scott Spotten by shooting at Scott Spotten with a shotgun, a deadly
weapon, contrary to I.C. 35-42-1-1 and IC 35-41-5-1 against the peace and
dignity of the State of Indiana.”) (emphasis added).
[12] See Appellant’s Br. in Support of Petition to Transfer at 8.
[13] The basic evidence surrounding the two vacated attempted murder
convictions was as follows: (1) Bethel and principal, Curtis Crenshaw, had
unsuccessfully attempted to rob a dairy mart. As they fled the store,
Crenshaw shot his gun in some unascertained direction as two store
employees lay behind an ice machine outside the store. (2) Minutes later,
the two men had just successfully robbed a fast food restaurant when a
customer approached the store. Crenshaw pointed his gun at him and the
customer fled. The two men pursued the customer outside and Crenshaw shot
his gun in the direction of the customer, who had taken refuge in his van
at the opposite end of the parking lot. Bethel, 730 N.E.2d at 1243-44.
[14] Although we need not revisit any prior decisions here, we note
that this case is factually unlike our decision in Arthur v. State, 663
N.E.2d 529, 531-32 (Ind. 1996), where we concluded that an erroneous ruling
approving a similarly defective attempted murder instruction did not result
in manifest injustice. In Arthur, the defendant was in fact the knife-
wielding principal, and the evidence of his intent to kill was not an issue
at trial. See id. at 531 n.2 (“The facts of the case included the
following: ‘While [the victim] was in the phone booth talking on the phone,
Appellant stabbed him in the chest with a knife. Appellant continued to
stab at [the victim] as he tried to close the phone booth door to protect
himself. Even after [the victim] had the door closed, Appellant continued
striking at the glass with his knife.’”) (alterations in original) (quoting
Arthur v. State, 499 N.E.2d 746, 747 (Ind. 1986)).
[15] Instead, the Court of Appeals found that the trial court’s
attempted murder “instruction required that Williams possess the specific
intent to kill Spotten. Such specific intent was not negated by other
[accomplice liability] instructions which informed the jury that acts
committed by a confederate may be attributable to others when the evidence
demonstrates that those present acted in union.” Williams v. State, No.
45A03-9210-CR-328, slip op. at 5 (emphasis added).
[16] New rules of criminal procedure are generally not available on
collateral review. Daniels v. State, 561 N.E.2d 487, 488-89 (1990). It is
well-settled, however, that Spradlin did not announce a new rule of
criminal procedure but instead explained “what the law already was at the
time we decided Spradlin.” Simmons v. State, 642 N.E.2d 511, 513 (Ind.
1994) (citing Smith v. State, 459 N.E.2d 355, 358 (Ind. 1984)).
In a similar fashion, Bethel did not announce a new rule of criminal
procedure but rather explained what the State was already required to prove
to gain a conviction for attempted murder under a complicity theory or
otherwise: “[T]he same specific intent to kill must be shown for an
attempted murder as for the crime of murder.” Zickefoose v. State, 270
Ind. 618, 620, 388 N.E.2d 507, 509 (1979).