Ashley v. State

¶1dissenting.

¶2I respectfully dissent. In State v. Lewis, 543 N.E.2d 1116 (Ind.1989) (Pivarnik, J., dissenting) our supreme court determined that the doctrine of the law of the case (unlike res judicata) did not present a question of the power of the reviewing court. Rather it is a doctrine to control the discretion of the reviewing court because the court has the power to reopen what it has decided. The court *893quoted with approval from Christianson v. Colt Industries Corp., 486 U.S. 800, 816-18, 108 S.Ct. 2166, 2178, 100 L.Ed.2d 811, 831 (1988) where the court stated that courts should be loathe to revisit a case in the absence of extraordinary circumstances such as where the original decision was “clearly erroneous and would work a manifest injustice.”

¶3As cited by the majority, our supreme court again applied this rule in State v. Huffman, 643 N.E.2d 899 (Ind.1994) (Shepard, C.J., dissenting).

¶4It is my view that such extraordinary departures from regular well-established practice in our system of jurisprudence must take cognizance of and be sensitive to the totality of circumstances in which they appear. Indeed, cases involving the doctrine of fundamental error, another extraordinary departure, should be so scrutinized.4

¶5In Lewisthe defendant was subjected to a second jeopardy for an offense on which he had originally secured judgment on the evidence. The trial court sustained his motion to dismiss and the supreme court refused to apply the law of the case doctrine to permit the state to try Lewis again for the offense.

¶6The court again applied the exception in Huffman, a death penalty case involving numerous assigned errors. The court affirmed the convictions and death sentence on appeal despite the fact that the instruction given by the court on Huffman’s defense of intoxication placed the burden of proving the defense upon Huffman. This was clearly erroneous and on post-conviction relief the trial court found that intoxication was the primary defense at trial and the state was unable to demonstrate that the error did not affect the result. 643 N.E.2d at 900.

¶7That is not the situation before us now. I agree that the court’s instruction on the elements of attempted murder failed to adequately state the element of specific intent to kill necessary to the offense. See Spradlin v. State, 569 N.E.2d 948 (Ind.1991), and its progeny. When, however, this error is placed in the context of the circumstances, it seems clear to me that no manifest injustice has occurred.

¶8The information charging Ashley alleged that he attempted to murder his former wife “by placing and firing a gun into the left side of Barbara Ashley’s head which caused a bullet to enter into the front part of Barbara’s head and exit towards the back part of her head.” The evidence at trial demonstrated that this was what had occurred. As stated in our decision on direct appeal, the evidence revealed that “... [Ashley] armed with a handgun, broke into the house and waited for Barbara to return. When Barbara entered the house the following morning [Ashley] confronted her. The two began to argue and [Ashley] threatened to kill her. He then pushed Barbara onto a couch, held a gun to her head, and fired. Miraculously, Barbara maintained consciousness and pleaded with [Ashley] to take her to the hospital. At first, he refused and talked of “finishing her off.”

¶9In these circumstances it would be ludicrous to argue that Ashley lacked the specific intent to commit murder. He therefore neither could nor did suffer any harm from the faulty instruction. Furthermore, at the time Ashley was tried and the instruction was given, it was not clearly erroneous. Accordingly, I find no reason to depart from applying the law of the case to Ashley’s appeal.

¶10I would affirm the denial of post-conviction relief.