Fisher v. State

Attorney for Appellant Attorneys for Appellee

Michael N. Pagano Steve Carter

Funk & Foster Attorney General of

Indiana

Hammond, Indiana

Nandita G. Shepherd

Deputy Attorney General

Indianapolis, Indiana

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__

In the

Indiana Supreme Court

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No. 45S03-0306-PC-251

Darryl Eugene Fisher,

APPELLANT (DEFENDANT BELOW),

v.

State Of Indiana

Appellee (Plaintiff below).

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Appeal from the Lake Superior Court, No. 45G02-9308-CF-193

The Honorable Natalie Bokota, Magistrate

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On Petition To Transfer from the Indiana Court of Appeals, No. 45A03-0207-

PC-241

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June 17, 2004

Rucker, Justice.

The question we address is whether the failure to raise on appeal the

trial court’s refusal to give a reckless homicide instruction as a lesser-

included offense to murder amounts to ineffective assistance of appellate

counsel. On the facts of this case, we conclude that it does.

Facts and Procedural History

In August 1993, Darryl Eugene Fisher was charged with murder arising

out of a shooting incident at a Gary restaurant. The facts as recounted by

the Court of Appeals on direct review are as follows:

[O]n the evening of August 2, 1993, Kizmond Alexander,

La’Montrell Thomas, and two other boys were riding bicycles

around their neighborhood. After leaving an arcade around 11:00

p.m., the boys went to a diner to eat. The boys entered the

lobby, approached the take-out window, and waited for someone to

take their orders. When no one came, the boys knocked on the

door leading to the seated area. Fisher came to the door. The

boys, who knew Fisher from the neighborhood, asked him to get

someone to take their orders. Fisher closed the door and went

back inside.

When no one again came to the window, the boys knocked on

the door a second time. Fisher opened the door. Fisher and one

of the boys just stared at each other for a few seconds.

Kizmond smiled and began to laugh. Fisher came out through the

doorway carrying a beer in his hand. Kizmond asked Fisher not

to throw the beer on him. Fisher responded that he was not

throwing beer, but was “slinging lead.” Fisher then pulled a

handgun from his back pocket. Kizmond turned and began to walk

out of the door. Fisher placed the handgun against Kizmond’s

back and fatally shot Kizmond.

State v. Fisher, No. 45A04-9405-CR-188, slip op. at 2, 3 (Ind. Ct. App.

June 20, 1995), trans. not sought.

At trial the State claimed the shooting was an act of retaliation.

The defense characterized the shooting as an accident or the result of

reckless grandstanding. At the close of trial defense counsel tendered an

instruction on the lesser offense of reckless homicide, which the trial

court declined to give. Ultimately the jury found Fisher guilty of murder.

On direct appeal, counsel did not raise the issue of the refused reckless

homicide instruction. The Court of Appeals affirmed the conviction.

In May 2001, Fisher filed a petition for post-conviction relief

contending, among other things, that appellate counsel rendered ineffective

assistance for failing to raise the issue of the refused instruction. At a

hearing on the petition, the State asserted “had this trial happened today,

there would be error in not giving the instruction, if it was a correct

statement of the law.” Appellant’s App. at 201 (emphasis added). The

dispute at the hearing centered on whether at the time of Fisher’s trial

reckless homicide was an inherently included lesser offense of murder. The

post-conviction court concluded that it was, but nonetheless denied

Fisher’s petition for post-conviction relief on the ground that the jury

could not have concluded that the lesser offense of reckless homicide was

committed but not the greater offense of murder. Id. at 132. In essence,

according to the post-conviction court, there was no serious evidentiary

dispute about the element distinguishing the greater offense from the

lesser offense. On review a divided panel of the Court of Appeals affirmed

the judgment of the post-conviction court. However it did so on grounds

different from those on which the post-conviction court relied. The Court

of Appeals determined (i) “the state of the law clearly requiring

instructions for inherently lesser-included offenses was not settled until

after Fisher’s direct appeal had been decided” and thus (ii) the court

could not “fault appellate counsel for choosing to raise issues that may

have appeared at the time to serve Fisher’s interests more effectively.”

Fisher v. State, 785 N.E.2d 320, 326-27 (Ind. Ct. App. 2003). Having

previously granted transfer, we now reverse the judgment of the post-

conviction court.

Discussion

Fisher contends appellate counsel rendered ineffective assistance for

not raising as error on direct appeal the refused reckless homicide

instruction. We review claims of ineffective assistance of appellate

counsel using the same standard applicable to claims of trial counsel

ineffectiveness. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000).

The defendant must show that appellate counsel was deficient in his

performance and that the deficiency resulted in prejudice. Id.

Ineffective assistance claims at the appellate level of proceedings

generally fall into three basic categories: (1) denial of access to an

appeal; (2) waiver of issues; and (3) failure to present issues well.

Bieghler v. State, 690 N.E.2d 188, 193-95 (Ind. 1997). Fisher’s claim is

based on the second category.

This Court has noted the need for a reviewing court to be deferential

to appellate counsel on this type of claim:

[T]he reviewing court should be particularly sensitive to the

need for separating the wheat from the chaff in appellate

advocacy, and should not find deficient performance when

counsel’s choice of some issues over others was reasonable in

light of the facts of the case and the precedent available to

counsel when that choice was made.

Timberlake v. State, 753 N.E.2d 591, 605 (Ind. 2001) (quoting Bieghler, 690

N.E.2d at 194), cert. denied, 537 U.S 839 (2002). We employ a two-part

test to evaluate “waiver of issue” claims: (1) whether the unraised issues

are significant and obvious from the face of the record and (2) whether the

unraised issues are “clearly stronger” than the raised issues. Id. at 605-

06 (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1985)). Stated

somewhat differently, “[a] defendant may establish that his appellate

counsel’s performance was deficient where counsel failed to present a

significant and obvious issue for reasons that cannot be explained by any

strategic decision.” Ben-Yisrayl v. State, 738 N.E.2d 253, 261 (Ind.

2000).

On direct appeal, counsel presented three issues: (1) whether

evidence that Fisher had previously fired a gun at one of the witnesses was

improperly admitted; (2) whether the trial court properly instructed the

jury on the defense of accident; and (3) whether the evidence was

sufficient to support Fisher’s conviction. See Fisher, No. 45A04-9405-CR-

188, slip op. at 2. As to issue one, counsel for Fisher argued that the

probative value of the evidence was outweighed by its prejudicial impact

and therefore should have been excluded under Indiana Evidence Rule 403.

Id. at 3. The Court of Appeals disagreed because the evidence tended to

disprove Fisher’s defense that he shot the victim by accident. Id. at 4.

As to issue number two, Fisher argued the trial court erred in giving its

own jury instruction regarding the defense of accident. The Court of

Appeals determined that Fisher waived this issue because although

submitting an accident instruction, Fisher did not object to the

instruction actually given by the trial court. Id. at 4. Concerning

Fisher’s sufficiency of the evidence claim, the Court of Appeals observed

that Fisher’s argument was merely a request to reweigh the evidence, which

the Court declined to do.

The issues counsel raised on direct appeal had little chance of

success. Courts of review rarely reverse a jury’s guilty verdict on

sufficiency of evidence grounds; the law is settled that failure to object

to a jury instruction given by the trial court waives the issue for review;

and even where meritorious, claims of Rule 404 violations, as with other

evidentiary rules, are subject to harmless error analysis. By contrast the

unraised issue stands on a different footing. We agree with our colleagues

that “the state of the law clearly requiring instructions for inherently

lesser-included offenses was not settled until after Fisher’s direct appeal

had been decided.” Fisher, 785 N.E.2d at 326. However, in our view this

fact is not dispositive of whether the lesser-included instruction issue

was significant, obvious, and clearly stronger than the issues counsel

presented on direct appeal.[1]

There is no question that at the time of Fisher’s trial and appeal in

1993-1995, the law on the matter of lesser-included offenses was in a state

of flux. One line of authority characterized by this Court’s opinions in

Sills v. State, 463 N.E.2d 228 (Ind. 1984) and Compton v. State, 465 N.E.2d

711 (Ind. 1984) advanced the view that the trial court was not required to

give an instruction on an alleged lesser-included offense where the

charging information closely tracked the statute. See Compton, 465 N.E.2d

at 713; Sills, 463 N.E.2d at 234. This was the apparent ground on which

the trial court relied in rejecting Fisher’s tendered instruction. On the

other hand, another line of authority characterized by this Court’s

opinions in Aschliman v. State, 589 N.E.2d 1160 (Ind. 1992) and Lynch v.

State, 571 N.E.2d 537 (Ind. 1991) stood for the proposition that the

wording of a charging document is not necessarily determinative of whether

the trial court should give an instruction on a lesser-included offense.

See Aschliman, 589 N.E.2d at 1161; Lynch, 571 N.E.2d at 539.

Acknowledging the ambiguity of the law governing lesser-included

offenses, this court finally clarified the matter in Wright v. State, 658

N.E.2d 563 (Ind. 1995). Writing “to resolve the unfortunate confusion that

has arisen in the cases that address when a trial court should instruct

juries on lesser included offenses,” id. at 565, we developed a three-part

test that trial courts should perform when called upon by a party to

instruct a jury on a lesser-included offense of the crime charged. First,

the trial court must compare the statute defining the crime charged with

the statute defining the alleged lesser-included offense to determine if

the alleged lesser-included offense is inherently included in the crime

charged. Id. at 566. Second, if a trial court determines that an alleged

lesser-included offense is not inherently included in the crime charged

under step one, then it must determine if the alleged lesser-included

offense is factually included in the crime charged. Id. at 567. If the

alleged lesser-included offense is neither inherently nor factually

included in the crime charged, the trial court should not give an

instruction on the alleged lesser-included offense. Id. Third, if a trial

court has determined that an alleged lesser-included offense is either

inherently or factually included in the crime charged, it must look at the

evidence presented in the case by both parties to determine if there is a

serious evidentiary dispute about the element or elements distinguishing

the greater from the lesser offense and if, in view of this dispute, a jury

could conclude that the lesser offense was committed but not the greater.

Id. “[I]t is reversible error for a trial court not to give an

instruction, when requested, on the inherently or factually included lesser

offense” if there is such an evidentiary dispute. Id.

Although Wright disapproved of or overruled in part several cases from

this Court as well as the Court of Appeals, Wright nonetheless relied upon

then-existing case authority to fashion a three-part test. For example we

observed, “At least since our decision in Lawrence v. State, (1978), 268

Ind. 330, 337, 375 N.E.2d 208, 212, analysis of this issue has spoken of

two steps. We believe that the explicit three-step analysis above should

eliminate any confusion that may have been caused by Lawrence’s two-step

approach.” Id. It is true that appellate counsel cannot be held

ineffective for failing to anticipate or effectuate a change in existing

law. Trueblood v. State, 715 N.E.2d 1242, 1258 (Ind. 1999). However,

precisely because the law in this area was unsettled and in a state of flux

at the time of Fisher’s trial and appeal, the issue of whether the trial

court erred in refusing to give a lesser-included instruction on reckless

homicide was both significant and obvious as well as clearly stronger than

the issues raised. See Pelmer v. White, 877 F.2d 1518, 1523 (11th Cir.

1989) (“That the law is unsettled on a point does not mean the legal basis

for arguing the point is unavailable.”). And appellate counsel’s failure

to present the issue on direct appeal was not a strategy-based decision.

See supra n.1. Indeed had counsel raised the issue, the analysis now

widely referred to as the “Wright test” could very well have been known as

the “Fisher test.”

In any event applying the analysis to the facts of this case, as to

the first two parts of the Wright test, the only element distinguishing

murder and reckless homicide is the defendant’s state of mind: reckless

homicide occurs when the defendant “recklessly” kills another human being

and murder occurs when the killing is done “knowingly” or “intentionally.”

Compare Ind. Code § 35-42-1-5 with I.C. § 35-42-1-1(1). Reckless conduct

is action taken in plain, conscious, and unjustifiable disregard of harm

that might result and the disregard involves a substantial deviation from

acceptable standards of conduct. I.C. § 35-41-2-2(c). By contrast, a

person engages in conduct “knowingly” if the person is aware of a “high

probability” that he or she is doing so. I.C. § 35-41-2-2(b). Thus,

reckless homicide is an inherently included lesser offense of murder. See

Davenport v. State, 749 N.E.2d 1144, 1150 (Ind. 2001). The determinative

issue is whether the evidence produced a serious evidentiary dispute

concerning Fisher’s state of mind that would justify giving the requested

instruction.

This is an appeal from the denial of post-conviction relief. The

petitioner in a post-conviction proceeding bears the burden of establishing

grounds for relief by a preponderance of the evidence. Ind. Post-

Conviction Rule 1(5); Saylor v. State, 765 N.E.2d 535, 547 (Ind. 2002).

When appealing from the denial of post-conviction relief, the petitioner

stands in the position of one appealing from a negative judgment. Saylor,

765 N.E.2d at 547. On review, we will not reverse the judgment unless the

evidence as a whole unerringly and unmistakably leads to a conclusion

opposite that reached by the post-conviction court. Id. Further, the post-

conviction court in this case entered findings of fact and conclusions of

law in accordance with Indiana Post-Conviction Rule 1(6). “A post-

conviction court’s findings and judgment will be reversed only upon a

showing of clear error—that which leaves us with a definite and firm

conviction that a mistake has been made.” Ben-Yisrayl, 729 N.E.2d at 106

(quotation omitted). In this review, findings of fact are accepted unless

clearly erroneous, but no deference is accorded conclusions of law. Woods

v. State, 701 N.E.2d 1208, 1210 (Ind. 1998). The post-conviction court is

the sole judge of the weight of the evidence and the credibility of

witnesses. Id.

Based on an examination of the trial transcript and record of

proceedings, the post-conviction court concluded there was no serious

evidentiary dispute concerning Fisher’s culpability. Specifically the post-

conviction court found that Fisher: (1) had served in the military and had

been trained in the use of firearms; (2) brought the handgun to the

restaurant that night; (3) knew the handgun was loaded; (4) placed the

handgun in a position of easy access (in his back pocket); (5) drew the

handgun and pointed it at the victim stating that he was not throwing beer

but slinging lead; (6) poked the victim in the back with the handgun; and

(7) fired the weapon at the victim’s back at point blank range.

Appellant’s App. at 132-33. The post-conviction court also determined that

the handgun was semi-automatic and if functioning properly the trigger must

have been pulled in order to fire. Id. at 132. On the other hand,

according to the post conviction court, if the pin was faulty, as Fisher

contended, then he was aware of that fact and based on his military

training would appreciate the dangers of a malfunctioning deadly weapon.

Id.

It is undeniable that the evidence recounted by the post-conviction

court supports the jury’s guilty verdict of murder. However when

addressing the question of whether there is a serious evidentiary dispute,

the court must evaluate the evidence presented by both parties. Wright,

658 N.E.2d at 567. In support of his claim, Fisher contends that the

central issue at trial was his culpability. During opening statements

trial counsel said, among other things, “The issue is not going to be

whether or not Darryl Fisher actually fired the weapon. Mr. Fisher is

going to testify, he will tell you what occurred. What is going to be the

issue is whether or not he knowingly or intentionally fired that weapon or

the other side of it, whether or not it was accidental.” Appellant’s App.

at 147. At trial Fisher testified that he did not intend to shoot Kizmond

but was only “playing around” with the gun. Tr. at 302. After the gun

discharged, Fisher testified that he “started screaming, I’m sorry, I’m

sorry” and dialed 911 for an ambulance. Id. at 299, 313. This testimony

was corroborated by at least two State’s witnesses. Enoch Boyd testified

that when the gun discharged, “[Fisher] said oh, man, I’m sorry,” and “was

running around crying with the gun in his hand.” Id. at 126, 176. La’

Montrell Thomas testified that Fisher had played around with a gun before

and therefore did not believe Fisher was serious about shooting anyone when

he pointed the weapon at Kizmond. Id. at 219. As a result when Thomas saw

Fisher with the handgun, Thomas continued to look “at the menu.” Id. at

222-23. Thomas also testified that once Kizmond was struck, Fisher seemed

“[s]tunned like that [sic] he did it or something . . . .” Id. at 223.

Although rejecting Fisher’s defense of accident, which would thereby

have completely absolved Fisher of any liability for his conduct, the jury

could have returned a conviction of reckless homicide instead of murder

depending on how it weighed and credited all of the evidence. See

Nordstrom v. State, 627 N.E.2d 1380, 1383 (Ind. Ct. App. 1994) (holding

reckless homicide proven beyond a reasonable doubt where defendant shot

wife at close range allegedly believing gun would not discharge), trans.

denied. As such, the trial court’s refusal to instruct the jury on the

lesser-included offense of reckless homicide was reversible error. And

appellate counsel’s failure to present this claim on direct appeal amounted

to ineffective assistance. The post-conviction court’s finding to the

contrary leaves us with a definite and firm conviction that a mistake has

been made.

Conclusion

We reverse the judgment of the post-conviction court. This cause is

remanded for further proceedings not inconsistent with this opinion.

Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.

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[1] We also note that counsel’s failure to raise as an issue the refused

jury instruction was not based on any strategic decision. See Ben-Yisrayl,

738 N.E.2d at 261. The post-conviction court specifically found,

“Appellate counsel testified that he had no strategic reason for not

raising the lesser included instruction issue on direct appeal. In fact,

appellate counsel said that he could not recall seeing the instruction on

reckless homicide which the defense tendered and the court denied as it

appears on page 57 of the Record of Proceedings.” Appellant’s App. at 130.