Wright v. State

643 N.E.2d 417, 1994 Ind. App. LEXIS 1703, 1994 WL 676402

• Court: Indiana Court of Appeals
• Decided: December 6, 1994
• Docket: 45A03-9402-CR-0073
• Status: Published

Opinions

OPINION

STATON, Judge.

A jury found Jessie Wright ("Wright") guilty of reckless homicide, a Class C felony¹, for which he was sentenced to eight years in prison. In his appeal, Wright presents one restated issue for our review: whether the trial court committed reversible error in its response to a jury's question after deliberations had commenced.

We reverse and remand.

The facts most favorable to the State reveal that Wright and Richard Wright ("Richard") were involved in an argument which caused Wright to stab Richard. Richard died as a result of the stabbing. Wright was arrested and charged with murder².

Although we are cognizant of the issue Wright raises in his appeal, our review of the record reveals a more compelling issue which we must consider: whether Wright's convietion of reckless homicide violated his right to due process of law.

Fundamental error is error that not corrected would deny the defendant due process. Ward v. State (1988), Ind., 519 N.E.2d 561, 562. An error fundamental in nature need not be raised by the defendant but should be addressed sua sponte on appeal. Garcia v. State (1982), Ind.App., 433 N.E.2d 1207, 1209. This court will review an issue not properly raised and preserved only when a blatant violation of basic principles has occurred, and the harm or potential for harm cannot be denied. Ward, supra, at 562.

-It is a denial of due process of law to convict a defendant of a charge not made because a defendant is entitled to limit his defense to those matters with which he stands accused. Maynard v. State, (1987), Ind.App. 508 N.E.2d 1346, 1351, trans. denied; Garcia, supra, at 1209. Where instrue-tions are given or a verdict is rendered on a particular offense which is not the same offense as the offense charged reversal is usually warranted. Maynard, supra, at 1351.

Wright was charged and tried for murder. During the course of their deliberations, the jury came back and asked the trial court if they could find Wright guilty of reckless homicide. In response to the jury's question, the trial court read the statutory provisions which define the degrees of homicide.³ The jury subsequently found Wright guilty of reckless homicide.

A defendant can be convicted of a lesser included offense of the greater offense charged if the information actually charged all the elements of the lesser offense.⁴ Hillard v. State (1987), Ind.App., 509 N.E.2d 1124, 1125. When a prosecutor charges the greater offense in language closely tracking the statutory definition of that offense and the prosecutor does not insert additional language showing an intent to charge any lesser offenses, the information must be held to charge only the greater offense. Slayton v. State (1984), Ind.App., 471 N.E.2d 1154, 1157.

The information against Wright read as follows:

[Murder]

Bruce L. Outlaw, Sr., upon oath, says that on or about July 4, 1998, in the County of Lake, State of Indiana, Jessie Lee Wright did knowingly or intentionally kill Richard Wright by means of a knife, a deadly weapon, contrary to IC 35-42-1-1 and against the peace and dignity of the State of Indiana.

Record, p. 5.

The information charged that Wright killed Richard with the specific intent to do so. -It is clear that the state sought only to charge Wright for murder. See Sills v. State (1984), Ind., 463 N.E.2d 228, 235, reh. denied (citing Jones v. State (1982), Ind., 438 N.E.2d 972).

The trial court's response to the jury's question injected an offense for which Wright was not charged. We conclude that this constituted a violation of Wright's fundamental right to due process of law. Accordingly, his conviction cannot stand.

Because fundamental error requires reversal we need not address any other issues Wright raises in his appeal.

The judgment of the trial court is reversed and the case is remanded for a new trial.

SHARPNACK, C.J., concurs. GARRARD, J., dissents and files separate opinion.

1 . IND.CODE 35-42-1-5 (1993).

2 . LC. 35-42-1-1 (1993).

3 . The court read from the following: LC. 35-42-1-3 (voluntary manslaughter); LC. 35-42-14 (involuntary manslaughter); LC. 35-42-1-5 (reckless homicide); LC. 35-42-2-1 (battery); and I.C. 35-41-2-2(c) (definition of reckless).

4 . However, the Indiana Supreme Court has noted that when the evidence indicates a direct attack by the defendant upon the victim resulting in the victim's death, reckless homicide cannot be an included offense of murder and that a jury instruction on reckless homicide in such case would lead to the possibility of an improper compromise verdict. Mueller v. State (1988), Ind., 517 N.E.2d 788, 792 and Heald v. State (1986), Ind., 492 N.E.2d 671, 683, reh. denied.