The classic description of an effective waiver of a constitutional right is the intentional relinquishment or abandonment of a known right or privilege. Courts indulge every reasonable presumption against waiver of fundamental constitutional rights. State sovereign immunity, no less than the right to trial by jury in criminal cases, is constitutionally protected. And in the context of federal sovereign immunity, it is well established that waivers are not implied. The rule should be no different with respect to state sovereign immunity.
Defendant appeals his conviction for the attempted murder of his estranged wife. The evidence showed that the defendant was found in the parking lot of his ex-wife’’s place of employment; with an ice pick, a box cutter, and binoculars; and after he earlier made threats to his ex-wife that he would wait for her to come out of work and kill her. Apparently, the defendant passed out while waiting for his ex-wife. He argued that his conduct did not constitute a substantial step toward commission of the crime of murder, as required by Indiana's attempt statute, but was instead mere preparation.
Does defendant’s conduct constitute attempted murder and not merely preparatory to the commission of the actual crime of murder?
The appellate court agreed, concluding that defendant's conduct was not strongly corroborative of defendant's stated intent. The appellate court noted that simply driving to the place contemplated for the commission of the crime before allowing oneself to fall asleep was not strongly corroborative of a firm criminal purpose. In addition, defendant's possession of his pickup, a box cutter, and an ice pick was not strongly corroborative of a firm criminal intent given the distance between defendant and the victim at the time of the arrest; because defendant was outside the victim's place of employment and the victim was inside, those items were virtually useless to defendant in terms of an attempted murder. While defendant possessed the weapons defendant planned to use in commission of the crime, defendant never moved close enough to the victim to make those weapons dangerous, that is, to demonstrate a present intent to use the weapons against the victim.