MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 31 2017, 9:58 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Curtis T. Hill, Jr.
Cynthia Maricle Attorney General of Indiana
Indianapolis, Indiana Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kenneth Frye, May 31, 2017
Appellant-Petitioner, Court of Appeals Case No.
89A05-1701-PC-18
v. Appeal from the Wayne Superior
Court
State of Indiana, The Honorable Gregory Horn,
Appellee-Respondent. Judge
Trial Court Cause No.
89D02-1407-PC-13
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 89A05-1701-PC-18 | May 31, 2017 Page 1 of 11
STATEMENT OF THE CASE
[1] Appellant-Petitioner, Kenneth Frye (Frye), appeals the post-conviction court’s
denial of his petition for post-conviction relief.
[2] We affirm.
ISSUE
[3] Frye presents us with one issue on appeal, which we restate as: Whether Frye
received ineffective assistance of trial counsel when counsel failed to tender a
voluntary manslaughter instruction.
FACTS AND PROCEDURAL HISTORY
[4] A detailed recitation of the facts in this case were set forth in our memorandum
opinion on direct appeal as follows:
Frye supported himself by doing odd jobs, and spent most of his
evenings drinking at the Knuckleheads Bar in Richmond. Frye
admitted that he usually carried a .25 caliber handgun with him
when he went out at night. Frye would socially drink with three
of his friends, and the group would take turns buying pitchers of
beer. Sometimes [Percy Campbell (Campbell)] joined the group;
however, Campbell was always short on money and wanted to
drink with them without paying.
One night in early October 2011, Campbell, who was wearing a
uniform shirt from a new job, approached Frye and his friends,
and asked if he could have a drink with them. Despite
Campbell’s new job, he needed someone to loan him money for
drinks because he had yet to be paid, but he promised to pay
them back when he received his first paycheck. Frye agreed to
Court of Appeals of Indiana | Memorandum Decision 89A05-1701-PC-18 | May 31, 2017 Page 2 of 11
loan Campbell money for drinks and bought four pitchers of beer
for $20.
Three or four weeks later, on October 31, 2011, Frye saw
Campbell again. On that night, Frye was drinking alone at
Knuckleheads and probably drank about 4 pitchers of beer. Frye
asked Campbell about the debt, and Campbell agreed to repay
Frye later that night at Alley Kats, a nearby bar.
Frye went to Alley Kats around 1:00 a.m. to collect his debt.
According to Frye, when he approached Campbell about the
debt, Campbell was dismissive. Frye described Campbell as
“showin’ off for his people” at Alley Kats and “actin’ like he
didn’t know me now.” Frye walked away from Campbell, but
then returned a few minutes later, determined to be repaid.
Witnesses, however, described Frye as the aggressor and claimed
that Frye repeatedly punched Campbell in the face until
Campbell grabbed him and held him in a headlock.
The confrontation ended when the bar owner and another
employee told Frye to leave the bar and escorted him outside.
Campbell was allowed to remain in the bar because the owner
believed that Frye was the aggressor. A few minutes later, Frye
walked back in the bar, raised his gun, and shot at Campbell.
Frye claims that the first shot was fired at Campbell’s knees, but
no witness account or physical evidence supports that assertion.
Frye continued walking toward Campbell and fired a second shot
that struck Campbell in the eye. Campbell died almost instantly
from a brain injury. Frye immediately ran from the bar.
Frye v. State, No. 89A05-1211-CR-577, 2013 WL 4022448 (Ind. Ct. App., Aug.
13, 2013) (internal references omitted).
Court of Appeals of Indiana | Memorandum Decision 89A05-1701-PC-18 | May 31, 2017 Page 3 of 11
[5] On November 3, 2011, the State filed an Information, charging Frye with
murder. A jury trial commenced on September 24, 2012, and the jury returned
a guilty verdict on September 27, 2012. During the sentencing hearing on
October 18, 2012, the trial court imposed an executed sentence of fifty-five
years. On direct appeal, Frye argued that his sentence was inappropriate
pursuant to Appellate Rule 7(B). Upon review, we affirmed the trial court.
[6] On July 3, 2014, Frye filed a petition for post-conviction relief, which was
amended by counsel on July 1, 2016. The post-conviction court conducted a
hearing on Frye’s petition on October 13, 2016. On December 15, 2016, the
post-conviction court issued its findings of fact, conclusions thereon, and
judgment, denying Frye’s petition for post-conviction relief, in pertinent part, as
follows:
12. At trial, Frye testified that Campbell was ‘beatin’ around the
bush’ about paying him back the money and he felt that
Campbell was making fun of him which made him frustrated.
13. However, Frye was directly asked whether or not he was
starting to get angry at this time, to which Frye replied, ‘Nah, it
was just like just, you know, either you are or you ain’t …. It was
just either you, either you’re going to pay or you’re not going to
pay.’
14. When asked whether he was angry or mad after the first
altercation at Alley Kats had occurred and he was being escorted
outside, Frye simply states, ‘No.’ Frye later clarified that he was
‘upset’ but again, state[d] that he was not mad or angry.
Court of Appeals of Indiana | Memorandum Decision 89A05-1701-PC-18 | May 31, 2017 Page 4 of 11
15. After testifying regarding the initial incident inside the bar
and being escorted outside, Frye was asked: ‘How long were you
outside before you went back in?’ To which, Frye answered,
‘Probably wasn’t about two (2) minutes … I don’t know it might
have been like, yeah, yeah, it was like two (2) minutes.’
16. Frye then stated that he went back inside, not to go back
after Campbell but ‘… to see actually why was throwed out …’
He reiterated this, again, later in his testimony.
17. Frye claimed throughout the trial that the shooting was ‘an
accident.’ Frye originally testified that he was shooting at
Campbell’s kneecap but later in his testimony stated that he was
‘shooting at, I was shootin’ at the ground, man.’
18. Frye even went so far as to testify that he was shooting
downward but that the bullet kept curving up until it hit
Campbell in the eye.
19. Frye was asked, yet again, on cross-examination if he was
mad at this time. This time, Frye said, ‘I was, uh, basically
wasn’t thinkin’ man, I was drunk, uh, tipsy, uh, dizzy, you
know, confused … I was upset.’
****
30. Frye’s own testimony at trial was that the killing of Campbell
was ‘accidental and reckless;’ that he meant to shoot Campbell in
the leg and not the head. Such evidence is consistent with the
trial strategy of attempting to show that the act was reckless and
not an intentional killing.
Court of Appeals of Indiana | Memorandum Decision 89A05-1701-PC-18 | May 31, 2017 Page 5 of 11
31. The [c]ourt finds no evidence to support Frye’s assertion or
any conclusion that Frye acted under ‘sudden heat’ resulting
from any conduct by Campbell.
32. Neither Frye’s testimony nor any other witness testimony
established that Campbell took any action of any kind or
character which prompted sudden rage, anger, resentment, or
terror which would have prevented Frye from ‘cooling down’
prior to shooting and killing Campbell.
33. The [c]ourt further finds that to the extent that Frye did
experience any sudden rage, anger, resentment, or terror, such
feeling or emotion had dissipated sufficiently in the two (2)
minutes that Frye remained outside after being escorted out of
the bar, which amount of time allowed Frye to regain his
composure, deliberation, and to think rationally about his
actions.
34. Frye’s decision to, thereafter, reenter the bar, aim the gun,
and to pull the trigger thereby having the bullet strike Campbell
in the head causing him to die was an intentional act consistent
with the verdict of the jury.
35. There was no basis in fact or law to pursue a claim of
‘sudden heat’ and a requested instruction on ‘sudden heat’ was
not warranted.
(Appellant’s App. Vol. II, pp. 55-56; 57-59).
[7] Frye now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
Court of Appeals of Indiana | Memorandum Decision 89A05-1701-PC-18 | May 31, 2017 Page 6 of 11
[8] We observe that post-conviction proceedings do not grant a petitioner a super-
appeal but are limited to those issues available under the Indiana Post-
Conviction Rules. Ind. Post-Conviction Rule 1(1). Post-conviction
proceedings are civil in nature, and petitioners bear the burden of proving their
grounds for relief by a preponderance of the evidence. P-C.R. 1(5). A
petitioner who appeals the denial of post conviction faces a rigorous standard of
review, as the reviewing court may consider only the evidence and the
reasonable inferences supporting the judgment of the post-conviction court.
McCullough v. State, 973 N.E.2d 62, 74 (Ind. Ct. App. 2012), trans. denied. The
appellate court must accept the post-conviction court’s findings of fact and may
reverse only if the findings are clearly erroneous. Id. If a post-conviction relief
petitioner was denied relief, he or she must show that the evidence as a whole
leads unerringly and unmistakably to an opposite conclusion than that reached
by the post-conviction court. Id.
II. Ineffective Assistance of Trial Counsel
[9] Frye contends that the post-conviction court erred in finding that he was not
denied the effective assistance of trial counsel. The Sixth Amendment to the
United States Constitution protects the right to counsel and the right to effective
assistance of counsel. When considering a claim of ineffective assistance of
counsel, a “strong presumption arises that counsel rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional
judgment.” Morgan v. State, 755 N.E.2d 1070, 1073 (Ind. 2001). “[C]ounsel’s
performance is presumed effective, and a defendant must offer strong and
Court of Appeals of Indiana | Memorandum Decision 89A05-1701-PC-18 | May 31, 2017 Page 7 of 11
convincing evidence to overcome this presumption.” Williams v. State, 771
N.E.2d 70, 73 (Ind. 2002). Isolated poor strategy, inexperience, or bad tactics
do not necessarily constitute ineffective assistance of counsel, a petitioner must
demonstrate both that his 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. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)), cert. denied, 729 N.E.2d 102 (2001). 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 establish 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.” Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy
either prong will cause the claim to fail, but most ineffective assistance of
counsel claims can be resolved by a prejudice inquiry alone. French, 778
N.E.2d at 824.
[10] Frye alleges that his trial counsel committed ineffective assistance when he
failed to tender an instruction on voluntary manslaughter. Frye was charged
with and convicted of murder. To obtain a conviction for murder, the State
was required to prove beyond a reasonable doubt that Frye knowingly or
voluntarily killed another human being. Ind. Code § 35-42-1-1. The only
difference between murder and voluntary manslaughter is the existence of
Court of Appeals of Indiana | Memorandum Decision 89A05-1701-PC-18 | May 31, 2017 Page 8 of 11
sudden heat, which for purposes of voluntary manslaughter is manifested by
emotions such as anger, rage, sudden resentment, or terror sufficient to obscure
the reason of an ordinary person, prevent deliberation and premeditation, and
render the defendant incapable of cool reflection. Evans v. State, 727 N.E.2d
1072, 1077 (Ind. 2000). Voluntary manslaughter is defined in Indiana Code
section 35-42-1-3, which provides in relevant part, “A person who knowingly or
intentionally kills another human being . . . while acting under sudden fear
commits voluntary manslaughter, a Level 2 felony.” “The existence of sudden
heat is a mitigating factor that reduces what otherwise would be murder . . . to
voluntary manslaughter.” I.C. § 35-42-1-3. An instruction on voluntary
manslaughter becomes warranted when the evidence demonstrates a serious
evidentiary dispute regarding the mitigating factor of sudden heat; that is, there
must be evidence showing sufficient provocation to induce passion that renders
a reasonable person incapable of cool reflection. Massey v. State, 955 N.E.2d
247, 256 (Ind. Ct. App. 2011). However, words alone do not constitute
sufficient provocation, especially words that are not intentionally designed to
provoke. Suprenant v. State, 925 N.E.2d 1280, 1283 (Ind. Ct. App. 2010), trans.
denied.
[11] There is no such evidence of sudden heat here. During his trial, Frye testified
that when the argument at Alley Kats became heated upon Campbell’s repeated
refusal to repay Frye, Frye implored Campbell to “just pay [him] [his] money
and [he’ll] leave.” (Tr. p. 583). As the fight ensued and Campbell held Frye in
a headlock, the confrontation was broken up by employees and Frye was
Court of Appeals of Indiana | Memorandum Decision 89A05-1701-PC-18 | May 31, 2017 Page 9 of 11
thrown out of Alley Kats. He affirmed that he was not angry when he was
reaching for his gun as he was being escorted out of the bar. Frye claimed that
he was surprised to find himself outside and explained that he “felt upset and
humiliated. Drunk and dizzy, confused.” (Tr. p. 590). After being outside for
approximately two minutes, Frye entered Alley Kats again and shot Campbell.
During closing argument, Frye’s counsel advocated that “[t]he whole issue in
this case is knowingly or intentional versus reckless. I’d submit to you, Ladies
and Gentlemen, that [Frye’s] state of mind was reckless.” (Tr. p. 689).
[12] Our review of the transcript does not reveal any appreciable evidence of sudden
heat. Although there is testimony about hurt feelings and being upset, at no
moment did Frye ever articulate that he developed an “impetus to kill” which
“suddenly overwhelmed” him. See Stevens v. State, 691 N.E.2d 412, 427 (Ind.
1997), reh’g denied, cert. denied, 525 U.S. 1021 (1998). Moreover, the trial record
indicates, as pointed out by the post-conviction court, that Frye’s trial counsel
pursued a theory of reckless homicide to persuade the jury that Campbell’s
killing was accidental. As such, counsel’s decision not to offer an instruction on
voluntary manslaughter amounted to a strategic decision. “There is no
constitutional requirement that a defense attorney be a flawless strategist of
tactician;” rather “[c]ounsel is afforded considerable discretion in choosing
strategy and tactics and we will accord that decision deference.” Woodson v.
State, 961 N.E.2d 1035, 1041-42 (Ind. Ct. App. 2012), trans. denied; Randolph v.
State, 802 N.E.2d 1008, 1013 (Ind. Ct. App. 2004), trans. denied. We “will not
lightly speculate as to what may or may not have been an advantageous trial
Court of Appeals of Indiana | Memorandum Decision 89A05-1701-PC-18 | May 31, 2017 Page 10 of 11
strategy as counsel should be given deference in choosing a trial strategy which,
at the time and circumstances, seems best.” Whitener v. State, 696 N.E.2d 40, 42
(Ind. 1998). Given the evidence in the record, which supported an inference
that Campbell’s death was accidental as Frye only intended to shoot him “in
the leg or something,’” we find that counsel’s pursuit of a recklessness defense
was a reasonable strategy. (Tr. p. 592). Because we conclude that there was no
serious evidentiary dispute that Frye acted under sudden heat, he was not
entitled to an instruction on voluntary manslaughter. Accordingly, Frye’s
counsel’s trial performance did not fall below an objective standard of
reasonableness and was not deficient. See French, 778 N.E.2d at 824.
CONCLUSION
[13] Based on the foregoing, we hold that Frye did not receive ineffective assistance
of trial counsel.
[14] Affirmed.
[15] Najam, J. and Bradford, J. concur
Court of Appeals of Indiana | Memorandum Decision 89A05-1701-PC-18 | May 31, 2017 Page 11 of 11