Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEYS FOR APPELLANT: SUSAN K. CARPENTER Public Defender of Indiana ANN-MARIE ALWARD Deputy Public Defender Indianapolis, Indiana
May 28 2009, 8:36 am
of the supreme court, court of appeals and tax court
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana MONIKA PREKOPA TALBOT Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
TERRELL J. ROBEY, Appellant-Petitioner, vs. STATE OF INDIANA, Appellee-Respondent. ) ) ) ) ) ) ) ) )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Sheila Carlisle, Judge The Honorable Stanley Kroh, Master Commissioner Cause No. 49G03-0411-PC-211988
May 28, 2009
MEMORANDUM DECISION - NOT FOR PUBLICATION
Case Summary and Issues Terrell Robey appeals the denial of his petition for post-conviction relief. On appeal, Robey raises two issues: 1) whether he received ineffective assistance of trial counsel; and 2) whether he received ineffective assistance of appellate counsel on direct appeal. Concluding the post-conviction court’s determination that Robey failed to prove ineffective assistance of trial or appellate counsel is not clearly erroneous, we affirm. Facts and Procedural History The facts, as stated in Robey’s direct appeal, are as follows: [O]n October 30, 2003, several individuals were present at the home of Mary Green for an evening of drinking and playing cards. Robey was there with his friend, William O’Brien. During a card game, O’Brien became embroiled in an argument with Jesse Austin over whether white people could be gangsters. The men eventually continued the argument outside, where it quickly escalated. Robey and O’Brien attempted to “jump” Austin, but Austin fought them off while others came to break up the fight. Austin then went back inside the house. Austin returned to the porch shortly thereafter with other individuals. The situation was still heated, and O’Brien and Robey were in the alley alongside the house. Robey proceeded to pull out a handgun and hand it to O’Brien. Robey urged O’Brien to shoot Austin, and he complied. After Austin was shot several times, Robey and O’Brien fled from the scene together down the dark alley. Austin later died from the gunshot wounds. Several hours after the shooting, Mary Green overheard O’Brien’s voice while speaking on the telephone with a friend. She demanded to speak with O’Brien. He eventually spoke with Green and apologized for shooting Austin. He said if he had known Austin was her brother, “it never would have went down like that.” Green immediately called police and alerted them to O’Brien’s location. Robey and O’Brien were apprehended at that location. While the .380 caliber handgun used in the shooting was not found, police recovered an empty holster and a live .380 caliber bullet from Robey’s person during a search incident to arrest. The State charged Robey with murder, as well as carrying a handgun without a license, a class A misdemeanor. Over Robey’s objection on the morning of trial, he and O’Brien were tried together. At the conclusion of the three-day jury trial, both men were found guilty of murder and carrying a handgun without a license.
Robey v. State, No. 49A02-0505-CR-438, slip op. at 2-3 (Ind. Ct. App., Apr. 18, 2006) (citations and footnotes omitted). Robey appealed his convictions, claiming the trial court improperly denied his motion to sever his trial from O’Brien’s because they had mutually antagonistic defenses. He also argued there was insufficient evidence to support his murder conviction. This court affirmed, holding the trial court did not err in denying Robey’s motion to sever because Robey and O’Brien’s defense theories were not mutually antagonistic and sufficient evidence supported Robey’s murder conviction. Id., slip op. at 5, 8. In September 2006, Robey filed a pro se petition for post-conviction relief alleging he received ineffective assistance of trial counsel. He later amended his petition with the assistance of counsel to allege that both his trial counsel and appellate counsel were ineffective. The crux of Robey’s claim is that his trial counsel failed to object to an erroneous jury instruction and that his appellate counsel failed to challenge the same jury instruction on appeal. Following an evidentiary hearing, the post-conviction court issued its findings of fact and conclusions of law denying Robey relief. Robey now appeals. Discussion and Decision I. Standard of Review To obtain relief in a post-conviction proceeding, a petitioner bears the burden of establishing his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). We accept the post-conviction court’s findings of fact unless they are clearly erroneous, but we do not defer to the post-conviction court’s conclusions of law. Martin v. State, 740 N.E.2d 137, 139 (Ind. Ct. App. 2000), trans. denied. Moreover, when the
petitioner appeals from a denial of relief, the denial is considered a negative judgment and therefore the petitioner must establish “that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court.” Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002), cert. denied, 540 U.S. 830 (2003). II. Ineffective Assistance of Trial Counsel Robey first claims that he received ineffective assistance of trial counsel when his counsel failed to object to an erroneous jury instruction. We review claims of ineffective assistance of trial counsel under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002). First, the petitioner must demonstrate that counsel’s performance was deficient in that it fell below an objective standard of reasonableness. Id. Second, the petitioner must demonstrate that he was prejudiced by his counsel’s deficient performance. Id. To demonstrate prejudice, a petitioner must demonstrate a reasonable probability that the result of the proceeding would have been different if his counsel had not made the errors. Id. A probability is reasonable if our confidence in the outcome has been undermined. Id. If we can more easily dismiss an ineffective assistance claim based upon the prejudice prong, we may do so without addressing whether counsel’s performance was deficient. Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002). At trial, Robey’s counsel failed to object to erroneous jury instructions on voluntary manslaughter. The trial court gave the following final instructions to the jury regarding murder and voluntary manslaughter:
Instruction Number 23 The Defendant is charged with Murder. Voluntary Manslaughter is included in Count I, Murder. If the State proves the Defendant guilty of Murder, you need not consider the included crime. However, if the State fails to prove the Defendant committed Murder, you may consider whether the Defendant committed Voluntary Manslaughter, which the Court will define for you. You must not find the Defendant guilty of more than one crime for each count. Instruction Number 24 You may then consider any included crime. The crime of Voluntary Manslaughter is included in the charged crime of Murder. The crime of Voluntary Manslaughter is defined by law as follows: A person who knowingly or intentionally kills another human being while acting under sudden heat commits Voluntary Manslaughter, a Class B felony. The offense is a Class A felony if it is committed by means of a deadly weapon. The existence of sudden heat is a mitigating factor that reduced what otherwise would be Murder to Voluntary Manslaughter. Before you may convict the Defendant, the State must have proved each of the following beyond a reasonable doubt: 1. The Defendant 2. Knowingly or intentionally 3. Killed 4. Jesse Austin 5. By means of a deadly weapon. If the State failed to prove each of the following elements beyond a reasonable doubt, you must find the Defendant not guilty of Voluntary Manslaughter as included in Count I. Instruction Number 25 The term “sudden heat” means an excited mind. It is a condition that may be created by strong emotion such as anger, rage, sudden resentment or jealousy. It may be strong enough to obscure the reason of an ordinary person and prevent deliberation and meditation. It can render a person incapable of rational thought. Appellant’s Appendix (from direct appeal) at 78-80. The instructions are erroneous because they fail to inform the jury that if the elements of murder are proven, it could consider the lesser offense of voluntary
manslaughter if there was evidence of sudden heat, and that it is the State’s burden to disprove the existence of sudden heat beyond a reasonable doubt. See Eichelberger v. State, 852 N.E.2d 631, 636 (Ind. Ct. App. 2006) (noting that trial court errs in failing to give a jury instruction explaining that the State must negate the presence of sudden heat beyond a reasonable doubt), trans. denied. The State concedes that an objection to the jury instructions probably would have been sustained, and that in this regard, trial counsel’s performance may have been deficient. See Brief of Appellee at 9. However, without reaching the question of whether trial counsel’s performance fell below an objective standard of reasonableness, we hold that trial counsel was not ineffective because Robey has failed to show that he was prejudiced by trial counsel’s actions. Voluntary manslaughter is a lesser-included offense of murder, distinguishable by the factor of the defendant having killed “while acting under sudden heat.” Ind. Code § 35-42-1-3. “To reduce murder to manslaughter, there must be sufficient provocation to engender such passion.” Johnson v. State, 518 N.E.2d 1073, 1077 (Ind. 1988). “To find sufficient provocation one must find that such emotions as anger, rage, sudden resentment, or terror must be sufficient to obscure the reason of an ordinary person, prevent deliberation and premeditation, and render the defendant incapable of cool reflection.” Id. The State is under no obligation to negate the presence of sudden heat in order to obtain a conviction for murder because “[t]here is no implied element of the absence of sudden heat in the crime of murder.” Earl v. State, 715 N.E.2d 1265, 1267 (Ind. 1999) (quoting Palmer v. State, 425 N.E.2d 640, 644 (Ind. 1981)). However, once a defendant places sudden heat into issue, the State then bears the burden of negating th e
presence of sudden heat beyond a reasonable doubt. Id. The critical inquiry here is whether sudden heat was placed at issue during trial. If it was not, then Robey could not be prejudiced by an erroneous jury instruction for voluntary manslaughter bec ause the jury could not have found the presence of sudden heat, and thus, could not have reduced his murder conviction to voluntary manslaughter even under a correct instruction. In this case, the evidence at trial did not support a finding of sudden heat. The evidence shows that Robey and O’Brien were in a fight with Austin that occurred outside the house. After the initial fight, Austin returned to the house and told others that he had beat up Robey and O’Brien. Sometime thereafter, Austin emerged from the house, engaged in some verbal sparring with Robey, and then Robey handed a gun to O’Brien and told him to shoot Austin. This is not the type of situation that engenders rage, sudden resentment, or terror. The initial fight was over, the parties had separated, there was a cooling-off period, and when Austin re-emerged from the house, Robey handed O’Brien a gun and told him to shoot Austin. Although Robey may have been angry with Austin, evidence that Robey was angry alone does not show sudden heat. Morrison v. State, 588 N.E.2d 527, 531 (Ind. Ct. App. 1992). Neither does Austin’s use of insulting or taunting words provide sufficient provocation for reducing murder to manslaughter. Jackson v. State, 709 N.E.2d 326, 329 (Ind. 1999). Robey admits “neither [his nor O’Brien’s] defense counsel argued in closing for a Voluntary Manslaughter verdict.” Brief of Petitioner-Appellant at 14. The post-
conviction court noted that there was no mention of sudden heat in any of the closing arguments and that sudden heat was not supported by any evidence. Id. Instead, the
defense theory at trial was that someone else had shot the victim. This court on direct appeal noted that “both [defendants] vehemently argued, through counsel in closing argument, that the eyewitnesses presented by the State were not credible and were lying to protect the real shooter. They opined that the shooter might have actually been one of the State’s witnesses.” Robey, slip op. at 4-5. Taking the evidence and the arguments as a whole, it is clear that there was no evidence presented at trial supporting a finding of sudden heat.1 In sum, Robey could not be prejudiced by the erroneous voluntary manslaughter jury instruction because there was no evidence of sudden heat introduced at trial. Without evidence of sudden heat, even a correct instruction would not have changed the outcome of the trial. III. Ineffective Assistance of Appellate Counsel The standard for reviewing claims of ineffective assistance of appellate counsel is the same as the standard for reviewing assistance of trial counsel. Walker v. State, 779 N.E.2d 1158, 1162 n.1 (Ind. Ct. App. 2002), trans. denied. A defendant must show that counsel’s performance fell below an objective standard of reasonableness and that counsel’s deficient performance prejudiced the defendant. Strickland, 466 U.S. at 68788. Robey argues that his appellate counsel was ineffective for failing to raise the issue of the erroneous jury instructions. In evaluating appellate counsel’s performan ce,
In fact, the trial court may have erred in giving the voluntary manslaughter instruction when there was no serious evidentiary dispute about sudden heat. See Watts v. State, 885 N.E.2d 1228, 1232 (Ind. 2008) (observing that if there is no serious evidentiary dispute over sudden heat, it is error for a trial cour t to instruct a jury on voluntary manslaughter in addition to murder).
we consider whether the unraised issue is significant and obvious from the record and whether it is clearly stronger than the issues that were presented. Bieghler v. State, 690 N.E.2d 188, 193 (Ind. 1997), cert. denied, 525 U.S. 1021 (1998). We also consider whether the issue which appellate counsel failed to raise “would have been clearly more likely to result in reversal or an order for a new trial.” Id. Again, Robey has not demonstrated to this court that the outcome of his direct appeal would have been different had his appellate counsel raised the issue. As we held above, the issue of sudden heat was not presented at trial. Therefore, an erroneous instruction on voluntary manslaughter could not prejudice Robey because the jury could not have found that sudden heat existed. Without evidence of sudden heat, there was no way for the jury to render a verdict of guilty of voluntary manslaughter as opposed to murder even with a correct instruction. Any error in the giving of the voluntary manslaughter instruction was
harmless, and appellate counsel was not ineffective for failing to raise the issue on direct appeal. Conclusion Robey did not receive ineffective assistance of trial or appellate counsel because there was no prejudice to Robey at his trial or on direct appeal. Therefore, the postconviction court’s denial of his petition for post-conviction relief was not clearly erroneous. Affirmed. DARDEN, J., and BAILEY, J., concur.