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
Jun 20 2014, 10:27 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
DENON TAYLOR GREGORY F. ZOELLER
Carlisle, Indiana Attorney General of Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DENON TAYLOR, )
)
Appellant-Petitioner, )
)
vs. ) No. 49A04-1305-PC-265
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Lisa F. Borges, Judge
Cause No. 49G04-9212-CF-168647
June 20, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Denon Taylor appeals the post-conviction court’s denial of his petition for post-
conviction relief. We affirm.
Issues
Taylor raises two issues, which we restate as:
I. whether he was denied the effective assistance of trial
counsel; and
II. whether he was denied the effective assistance of
appellate counsel.
Facts
The facts, as stated in Taylor’s direct appeal, follow:
Denon Taylor was convicted by a jury of murdering
his wife, Dorthea Taylor. Dorthea was killed in the early
morning hours of December 6, 1992, outside the Indianapolis
apartment building where she had taken an apartment the day
before. She had filed for divorce on September 29, 1992, and
had obtained a restraining order against Taylor on November
23, 1992, based on his physical abuse and threats to kill her.
Cecil Holly also had an apartment in Dorthea’s new
building. On the evening before her death, Dorthea was to
attend an office Christmas party. She lent her car to Holly
who dropped her off at a friend’s house to proceed to the
party. Holly then picked up his youngest brother and a friend.
As the three were driving in downtown Indianapolis, they
coincidentally passed Taylor, who recognized Dorthea’s car
and pursued it. At one stop, Taylor initiated a verbal
exchange with Holly and challenged Holly’s use of Dorthea’s
car. At a second stop Holly could see Taylor possessed a
handgun. With Taylor following, Holly then drove to a
nearby nightclub where he knew off-duty police served as
security guards and informed a guard in the parking lot of the
club that Taylor had a handgun. The officer searched Taylor,
but found no gun on his person. The guard then told Holly to
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leave while he spoke with Taylor. Holly returned to his home
where Taylor telephoned him three times within an hour.
Among other things, Taylor said that if he could not have
Dorthea, nobody could, and that he would kill her. After the
last of the calls, Holly received a page from Dorthea and went
to pick her up at her friend’s house.
In the meantime, after the last of his calls to Holly,
Taylor telephoned Alif Rogers, a friend, and asked him to
come over to Taylor’s home, which Rogers did. When
Rogers arrived, Taylor got in the car, and told Rogers to drive
to Dorthea’s apartment building. On arrival, the two drove
around the parking lot looking for Dorthea’s car. When they
did not find the car, at Taylor’s instruction, Rogers backed
into a parking space facing the apartment house to await
Dorthea’s return.
Holly and Dorthea arrived in Dorthea’s car about thirty
or forty minutes later. Once more at Taylor’s instruction,
Rogers followed the car until Holly parked and Holly and
Dorthea proceeded on foot toward the building. At that point
Taylor jumped from Rogers’ car and ran toward them yelling,
“Yeah, yeah I got you now. I got you now, bitch. You’re
going with me.” Dorthea refused, and Taylor struck her with
a gun he had removed from his waistband. Dorthea told
Holly to call the police and, as Holly ran, Taylor fired a shot
at Holly. Holly first dove for the ground, then fled to the
building. From the building Holly could see Taylor drag
Dorthea by her hair and hear both continuing to shout.
Finally, Taylor first threatened to kill Dorthea if she did not
come with him, then pulled her head up to the pistol and
fired.
The foregoing is largely taken from Holly’s testimony.
Rogers’ version of these events is that he stayed in his car
listening to a loud tape after Taylor got out to confront Holly
and Dorthea. At the time he removed the tape to listen to the
other side, he heard a muffled gunshot. As he turned to look,
Taylor jumped in the car. Rogers asked Taylor if he was
trying to scare Dorthea. Taylor responded that he had shot
her.
Taylor v. State, 681 N.E.2d 1105, 1107-08 (Ind. 1997).
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After his June 1994 trial, Taylor was convicted of the murder of Dorthea, Class A
felony attempted murder of Holly, and Class A misdemeanor carrying a handgun without
a license. He received an aggregate sentence of 100 years in the Department of
Correction. In his direct appeal, Taylor raised five issues: (1) whether the trial court
committed reversible error in its instruction that “lying in wait” can be proof of specific
intent to commit murder; (2) whether the instruction’s “emphasis on lying in wait”
impermissibly shifted the burden of persuasion to the defendant as to intent; (3) whether
the presence in the jury room of a withdrawn death sentence request constituted
reversible error; (4) whether the convictions were supported by sufficient evidence; and
(5) whether the sentence imposed was manifestly unreasonable. Id. at 1107. On June 12,
1997, our supreme court rejected Taylor’s arguments and affirmed the convictions.
Eventually, Taylor filed a petition for post-conviction relief raising two issues: (1)
whether trial counsel was ineffective for failing to “object to the improper jury
instructions under” Spradlin v. State, 569 N.E.2d 948, 950 (Ind. 1991); and (2) whether
appellate counsel was ineffective because, “[d]uring the trial, one of the central issues
was Defendant’s intent to commit Attempted Murder yet the jury was provided with
instructions that allowed them to find Defendant guilty without the required specific
mens rea, in clear violation of Spradlin.” App. pp. 98-99. After a hearing, the post-
conviction court entered findings of fact and conclusions thereon denying Taylor’s
petition. Taylor now appeals.
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Analysis
Taylor argues that the post-conviction court erred by denying his petition. A court
that hears a post-conviction claim must make findings of fact and conclusions of law on
all issues presented in the petition. Pruitt v. State, 903 N.E.2d 899, 905 (Ind. 2009)
(citing Ind. Post-Conviction Rule 1(6)). “The findings must be supported by facts and the
conclusions must be supported by the law.” Id. Our review on appeal is limited to these
findings and conclusions. Id. Because the petitioner bears the burden of proof in the
post-conviction court, an unsuccessful petitioner appeals from a negative judgment. Id.
(citing P-C.R. 1(5)). “A petitioner appealing from a negative judgment must show that
the evidence as a whole ‘leads unerringly and unmistakably to a conclusion opposite to
that reached by the trial court.’” Id. (quoting Allen v. State, 749 N.E.2d 1158, 1164 (Ind.
2001), cert. denied). Under this standard of review, “[we] will disturb a post-conviction
court’s decision as being contrary to law only where the evidence is without conflict and
leads to but one conclusion, and the post-conviction court has reached the opposite
conclusion.” Id.
Taylor argues that both his trial counsel and appellate counsel were ineffective.
We apply the same standard of review to claims of ineffective assistance of appellate
counsel as we apply to claims of ineffective assistance of trial counsel. Williams v. State,
724 N.E.2d 1070, 1078 (Ind. 2000), cert. denied. To prevail on a claim of ineffective
assistance of counsel, a petitioner must demonstrate both that his or her counsel’s
performance was deficient and that the petitioner was prejudiced by the deficient
performance. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (citing Strickland v.
5
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)), cert. denied. A counsel’s
performance is deficient if it falls below an objective standard of reasonableness based on
prevailing professional norms. French v. State, 778 N.E.2d 816, 824 (Ind. 2002). To
meet the appropriate test for prejudice, the petitioner must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. Id. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
Failure to satisfy either prong will cause the claim to fail. Grinstead v. State, 845 N.E.2d
1027, 1031 (Ind. 2006). Most ineffective assistance of counsel claims can be resolved by
a prejudice inquiry alone. Id.
I. Ineffective Assistance of Trial Counsel
Taylor argues that his trial counsel was ineffective for failing to object to jury
instructions on attempted murder that allegedly violated Spradlin. Taylor was tried in
1994. In 1991, our supreme court had held that an attempted murder instruction “must
inform the jury that the State must prove beyond a reasonable doubt that the defendant,
with intent to kill the victim, engaged in conduct which was a substantial step toward
such killing.” Spradlin, 569 N.E.2d at 950. The instructions given at Taylor’s trial
provided:
A person attempts to commit a crime when he
knowingly or intentionally engages in conduct that constitutes
a substantial step toward the commission of the crime.
An attempt to commit a crime is a felony or
misdemeanor of the same class as the crime attempted.
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The crime of murder is defined by statute as follows:
A person who knowingly or intentionally kills another
human being commits murder.
To convict the defendant of attempt murder, the State
must have proved each of the following elements:
The defendant Denon A. Taylor
1. knowingly or intentionally
2. engaged in conduct with intent to kill Cecil B. Holly
by knowingly shooting a deadly weapon, a handgun, at
and toward the person of Cecil B. Holly
3. which conduct constitutes a substantial step toward
the knowing or intentional killing of another human
being.
If the State failed to prove each of the elements beyond
a reasonable doubt, the defendant should be found not guilty.
If the State did prove each of the elements beyond a
reasonable doubt, then you should find the defendant guilty of
attempt murder, a class A felony.
R. at 176.
According to Taylor, the instruction was erroneous because it included the mens
rea of “knowingly” several times.1 Taylor acknowledges that the instruction included a
reference to “intent to kill,” but he argues that including “knowingly” reduced “the
requisite mens rea on which a jury could convict Taylor for attempted murder.”
1
The post-conviction court found that the use of “knowingly” in the instruction was not improper at the
time of Taylor’s trial and found no Spradlin violation. App. pp. 159-60. On appeal, the State makes no
argument that the use of “knowingly” was permissible at the time of the trial. Rather, the State argues
that, under Greenlee v. State, 655 N.E.2d 488, 491 (Ind. 1995), and Price v. State, 591 N.E.2d 1027, 1029
(Ind. 1992), “the mere presence of a reference to a ‘knowing’ state of mind does not necessarily create
error, even if it is not completely correct under Spradlin, so long as the jury is still clearly told of the need
to find that the defendant acted with the intent to kill.” Appellee’s Br. p. 18. We need not address this
issue because we conclude that, even if the instruction was erroneous, Taylor was not prejudiced by his
trial counsel’s failure to object to it.
7
Appellant’s Br. p. 12. Taylor contends that his trial counsel’s failure to object to the
instruction was deficient and that he was prejudiced by the failure.
We need not address whether trial counsel’s performance was deficient because
we conclude that Taylor was not prejudiced by the alleged deficiency. In Ramsey v.
State, 723 N.E.2d 869, 871 (Ind. 2000), our supreme court addressed an attempted
murder instruction that included a “knowingly” mens rea but also stated that the
defendant had to have a “specific intent to kill.” The court held that, although the trial
court should not have included the word “knowingly” in the instruction, the instruction
properly mentioned the “specific intent to kill” both as an element in the charging
instrument and as an element that the State was required to prove beyond a reasonable
doubt. Ramsey, 723 N.E.2d at 872. The court found that the jury instructions, taken as a
whole, sufficiently informed the jury of the State’s burden of proving that the defendant
specifically intended to kill the victim. Id. at 873. The reversal of an attempted murder
conviction, despite a Spradlin error, is not required if either the intent of the perpetrator is
not a central issue at trial or the instructions as a whole sufficiently suggested the
requirement of the intent to kill. Id. at 872 n.4.
Here, in addition to the final instruction on attempted murder that mentioned the
“intent to kill” requirement, the charging information, which was read to the jury as part
of the preliminary instructions, also alleged that Taylor had the “intent to kill” Holly. R.
at 136. Finally, the jury was also instructed that:
The intent to kill may be inferred from the use of a
deadly weapon in a manner likely to cause serious bodily
8
injury or death and may be inferred from discharging a
weapon in the direction of the victim.
The intent to kill can be found from the acts,
declarations and conduct of the defendant at or just
immediately before the commission of the act, from the
character of the weapon used, and from the part of the body
on which the wound was inflicted.
Id. at 169. The instructions as a whole sufficiently suggested the requirement of the
intent to kill.
Further, Taylor’s intent to kill Holly was not a central issue at his trial. Taylor’s
argument at trial was that he did not shoot at Holly and, thus, did not take a substantial
step toward killing Holly. Once the jury determined that Taylor did, in fact, shoot at
Holly, his intent was not in question. Testimony at the trial established that Taylor had
threated to kill Dorthea and anyone that got in his way. Even if trial counsel was
deficient, Taylor has failed to demonstrate that, but for the alleged deficiency, the result
of the proceeding would have been different. The post-conviction court’s denial of
Taylor’s petition on this basis is not clearly erroneous.
II. Ineffective Assistance of Appellate Counsel
Taylor also argues that his appellate counsel was ineffective because she failed to
argue in the direct appeal that the attempted murder instruction resulted in fundamental
error. Because the strategic decision regarding which issues to raise on appeal is one of
the most important decisions to be made by appellate counsel, appellate counsel’s failure
to raise a specific issue on direct appeal rarely constitutes ineffective assistance. See
Taylor v. State, 717 N.E.2d 90, 94 (Ind. 1999). The Indiana Supreme Court has adopted
9
a two-part test to evaluate the deficiency prong of these 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. Bieghler v. State, 690
N.E.2d 188, 194 (Ind. 1997), cert. denied. If this analysis demonstrates deficient
performance by counsel, the court then examines whether the issues that appellate
counsel failed to raise “would have been clearly more likely to result in reversal or an
order for a new trial.” Id.
The post-conviction court concluded that appellate counsel’s performance was not
deficient because, even if she had raised the issue of fundamental error as a result of the
attempted murder instruction, the argument would not have been successful. The post-
conviction court noted that Taylor’s intent as to Holly was not a central issue in the case.
The post-conviction court also found no prejudice. On appeal, Taylor briefly argues that
his appellate counsel’s failure to raise the issue on direct appeal was ineffective
assistance.
Because Taylor’s trial counsel did not object to the attempted murder jury
instruction at trial, appellate counsel would have been required to raise this issue on
direct appeal as fundamental error. “The ‘fundamental error’ exception is extremely
narrow, and applies only when the error constitutes a blatant violation of basic principles,
the harm or potential for harm is substantial, and the resulting error denies the defendant
fundamental due process.” Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). “The
error claimed must either make a fair trial impossible or constitute clearly blatant
violations of basic and elementary principles of due process.” Brown v. State, 929
10
N.E.2d 204, 207 (Ind. 2010) (internal quotation omitted). “This exception is available
only in egregious circumstances.” Id. (internal quotation omitted).
In Dawson v. State, 810 N.E.2d 1165, (Ind. Ct. App. 2004), trans. denied, we
addressed a similar ineffective assistance of appellate counsel argument. The instructions
at the defendant’s trial included a “knowingly” mens rea and also required an “intent to
kill.” Dawson, 810 N.E.2d at 1174. We held that the instructions given at the
defendant’s trial adequately informed the jury to convict him only if they found he had
the specific intent to kill. Consequently, his appellate counsel could not have proven the
prejudice necessary to establish a claim of fundamental error. Id. at 1176 (citing Price,
591 N.E.2d at 1029). Thus, appellate counsel was not ineffective for failing to challenge
the attempted murder jury instructions on direct appeal. Id.
Similarly, here, the jury instructions adequately informed the jury that a specific
intent to kill Holly was required to convict Taylor of attempted murder. Further, Taylor’s
intent was not a central issue at trial. Taylor’s appellate counsel would have been unable
to demonstrate that the jury instructions resulted in fundamental error. Consequently, his
appellate counsel did not fail to present a significant and obvious issue, and she was not
ineffective for failing to challenge the attempted murder jury instruction as fundamental
error. The post-conviction court’s denial of Taylor’s petition on this issue is not clearly
erroneous.
Conclusion
The post-conviction court properly denied Taylor’s petition for post-conviction
relief. We affirm.
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Affirmed.
BAKER, J., and CRONE, J., concur.
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Denon Taylor v. State of Indiana
Combined Opinion