Justices toss attempted murder conviction due to jury instruction

Dave stafford for www.theindianalawyer.com

An Anderson gang member convicted of attempted murder will get a new trial after the Indiana Supreme Court vacated the judgment because jurors received erroneous instructions.

Ruben Rosales was 18 and a member of the Latin Kings gang when a teen from a rival gang, Sergio Torres, harassed and threatened his girlfriend and vandalized her house. Rosales and another man confronted Torres in an alley where he was severely beaten. Witnesses said they saw two men leaving the alley, including one matching Rosales’ description carrying a metal baseball bat.

Rosales also told his aunt he needed to travel to Chicago to avoid “anymore trouble,” but when she found out about the attack, she called police who arrested Rosales at a bus station.

“On appeal, Rosales argues that the trial court committed fundamental error by giving an instruction permitting the jury to convict him of attempted murder as an accomplice without the specific intent to kill,” Justice Steven David wrote for the court. “Our careful review of our case law leads us to conclude that under the circumstances of this case Rosales is correct.”

David wrote the error was compounded in closing arguments, “when the State repeatedly insisted that specific intent to kill was not required for accomplice liability to attempted murder.”

Rosales was found guilty of Class A felony attempted murder and Class D felony criminal gang participation, and Madison Circuit Judge Thomas Newman Jr. sentenced him to an aggregate 50 years in the Department of Correction.

A divided Court of Appeals previously affirmed the conviction, with the majority finding the error harmless. Justices sided with appellate Judge Terry Crone’s dissent in that case.

“To be sure, there were also ample reasons for the jury to conclude that Rosales attacked Torres with the specific intent to kill him, so if the State had not repeatedly misstated the law we likely would have found an insufficient likelihood of prejudice to Rosales from the instruction,” David wrote. “But the State’s repeated insistence that Rosales’s specific intent to kill did not matter, coupled with the inaccurate jury instruction on accomplice liability, is enough to make a fair trial impossible and constitute fundamental error. We therefore reverse Rosales’s conviction for attempted murder and remand this case to the trial court for a new trial.

“Nevertheless, going forward, when an individual is tried for attempted murder as an accomplice, we recommend that Pattern Jury Instruction 2.11(a) be given. This instruction — titled “Aiding, Inducing or Causing Attempted Murder” — instructs the jury, among other things, that the State must prove beyond a reasonable doubt that the defendant acted with the specific intent to kill when he or she knowingly or intentionally aided, induced, or caused another person to engage in conduct constituting a substantial step toward attempting to murder another person. Consistent with our case law, this instruction informs the jury of the State’s burden to prove beyond a reasonable doubt all the elements of attempted murder under an accomplice liability theory — especially the defendant’s specific intent to kill — in order to convict the defendant. And when the defendant is tried under both direct and accomplice theories of liability for attempted murder, this instruction becomes crucial to safeguarding against the error we found in this case.”

The case is Ruben Rosales v. State of Indiana, 48S02-1404-CR-297.