ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John (Jack) F. Crawford Jeffrey A. Modisett
Indianapolis, Indiana Attorney General of Indiana
Deputy Attorney General
SUPREME COURT OF INDIANA
ROBERT T. METCALFE, ) ) Appellant (Defendant Below ), ) ) 49S02-9901-CR-7 v. ) in the Supreme Court ) STATE OF INDIANA, ) 49A02-9710-CR-704 ) in the Court of Appeals Appellee (Plaintiff Below ). )Cause No. 49G03-9411-CF-157473
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Cale Bradford, Judge
September 3, 1999
SHEPARD, Chief Justice.
Appellant Robert M. Metcalfe arrives in this appeal with multiple convictions that flow from a late afternoon shoot-out over drugs. We reverse one conviction for instruction error and affirm
Factual Background and Procedural History
The State charged Metcalfe, one of the gunmen, with murder,
attempted murder and carrying a handgun without a license. The
jury found Metcalfe guilty of reckless homicide, a lesser included
offense of murder. It also found him guilty of attempted murder
and carrying a handgun.
Metcalfe appealed his conviction on all counts. The Court of
Appeals affirmed. Metcalfe v. State, No. 49A02-9710-CR-704 (Ind.
Ct. App. Sept. 3, 1998). Due to an inadequate jury instruction on
attempted murder, we grant transfer and reverse.
3. Another human being.
A person attempts to commit a crime when, acting with the
intent required for the commission of the crime, he
engages in conduct that constitutes a substantial step
toward commission of the crime.
(R. at 97-99 (internal quotation marks omitted).) To sustain a conviction for attempted murder, the jury must be instructed that the accused intended to kill the victim and took a substantial step to do so. See, e.g., Spradlin v. State, 569 N.E.2d 948 (Ind. 1991). Any jury instruction suggesting a lesser mens rea is inadequate. See Beasley v. State, 643 N.E.2d 346 (Ind. 1994).
Instances 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). In this case, however, while Metcalfe's identity
as the perpetrator was unquestioned, his intent was very much open
to debate, and the wording of the instruction does not otherwise
suggest the intent requirement.
Dickson, Sullivan, Selby, and Boehm, JJ., concur.
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