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).
)
) Supreme Court No.
) 49S00-9801-CR-33
)
)
)
)
)
)
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.