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

v.

STATE OF INDIANA,
Appellee (Respondent below).

)
)    Supreme Court No.
)    45S03-0011-PC-618
)
)    Court of Appeals No.
)    45A03-9807-PC-299
)
)
)

    The only other witness to the shooting, Mr. Amin, a United States postal worker, o bserved 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.See footnote
    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.” Ne ither 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 See footnote 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 See footnote 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. See footnote

    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, Wi lliams cited two decisions from this Court where we found fundamental error in an identical instruction. See footnote 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.

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; See footnote (ii) the instructions as a whole sufficiently suggested the requirement of intent to kill; See footnote or (iii) both, See footnote that is not the case here.
    To the contrary, Williams’s intent as a non-shooting accomplice was seriously di sputed 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. See footnote     

    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 i nstructing 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,” See footnote 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.

    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. See footnote

    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 pri ncipal, “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 anal ysis:
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. See footnote
    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 a s 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. See footnote 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.”). See footnote

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 a ccomplice, we vacate Williams’s conviction under an accomplice liability theory for attempted murder.

Williams v. State, No. 45A03-9210-CR-328, slip op. at 5-6 (emphasis added).

Id. at 950-51 (emphasis added).