Ann M. Sutton
Marion County Public Defender Agency
Attorneys for Appellee
Cynthia L. Ploughe
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA Appellee (Plaintiff below ).
) Supreme Court No.
) Court of Appeals No.
February 10, 2003
Under the appellate jurisdictional rules in effect at the time, the appeal from
ction 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 cons
equence of the 20-year habitual offender
enhancement. His appeal, therefore, was to this court.
In a nutshell, the Court of Appeals affirmed both of Defendants attempted murder
convictions but remanded the case to the trial court for resolution of another
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 Anthonys 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
Anthonys attempted murder convictions.
The Court of Appeals rejected this request. It held that it had
previously addressed and rejected exactly the same claim in Defendants 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.
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 Defendants position but ultimately
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 Defe
ndants 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.
Defendants 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 Anthonys convi
ctions 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 Anthonys situation, we agree with
Defendant that the trial court erred in instructing the jury in his situation
But Defendants claim is one of fundamental error error so egregious that
rsal 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).
nthony 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 Anthonys 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.
Defendants 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 Defendants 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.
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 Anthonys 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 defendants 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 Anthonys intent to kill Martinez was clearly at issue.
Id. Accordingly we said: [B]ecause Defendants 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 courts
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.