FILED
May 30 2018, 5:57 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General of Indiana
William D. Polansky George P. Sherman
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Racxon Cruze McDowell, May 30, 2018
Appellant-Petitioner, Court of Appeals Case No.
82A01-1710-PC-2469
v. Appeal from the Vanderburgh
Superior Court
State of Indiana, The Honorable Robert J. Pigman,
Appellee-Respondent. Judge
Trial Court Cause No. No.
82D03-1412-PC-6080
Mathias, Judge.
[1] Racxon Cruze McDowell (“McDowell”) was convicted of murder in 2012.
Following his unsuccessful direct appeal, McDowell filed a petition for post-
conviction relief, which the Vanderburgh Superior Court denied. McDowell
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appeals and presents three issues, which we consolidate and restate as whether
McDowell was denied the effective assistance of trial counsel.
[2] We affirm.
Facts and Procedural History
[3] The facts surrounding McDowell’s convictions are as follows.1 On the morning
of June 3, 2012, McDowell called 911 to report that his girlfriend, Rachel
Lomax (“Rachel”) was unresponsive. McDowell told the responding
paramedic, Dylan Woods (“Woods”), that he and Rachel had been out
drinking the night before and that when they came home from the bar, she took
six sleeping pills and went to bed. He claimed that when he woke up, he found
Rachel sitting naked on the toilet and not breathing. Woods initially suspected,
based on McDowell’s story, that Rachel might have overdosed. While
attending to Rachel, however, he noticed numerous injuries on her body. When
confronted with these injuries, McDowell claimed that Rachel had gotten into a
fight at the bar the night before. Woods and a responding firefighter attempted
to perform CPR on Rachel. But the efforts to resuscitate Rachel were
unsuccessful, and she was pronounced dead at the scene.
[4] Woods summoned the Evansville Police Department (“EPD”) to the scene,
who subsequently sought a search warrant. Both the police and Woods noted
1
A detailed statement of facts was unnecessary to address McDowell’s arguments on direct appeal. See
McDowell v. State, 82A01-1311-CR-492, 2014 WL 3408336, slip op. at 2–3 (Ind. Ct. App. July 11, 2014). We
therefore set forth a more detailed recitation of the facts here.
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that McDowell had scratches on his face. After obtaining the search warrant,
the police examined the scene and noted a shoe print on Rachel’s shirt that was
consistent with McDowell’s shoe. Some of Rachel’s clothing had also been
ripped or damaged. Rachel’s blood was on the door of the bathroom and her
right hand. Testing of Rachel’s fingernails revealed the presence of McDowell’s
skin under her fingernails.
[5] McDowell was taken to jail by EPD Officer Raymond Holden (“Holden”).
McDowell asked Holden if he remembered him from a prior traffic stop. When
Holden stated that he did not remember him, McDowell responded, “Well, you
remember Rachel, don’t you?” Trial Tr. p. 607. When Holden asked who
Rachel was, McDowell stated, “You know Rachel, the girl I f**kin’ killed?” Id.
When being booked into jail, McDowell told the booking officer, “I loved the
bitch. I killed her. I loved the bitch. I killed her.” Id. at 617.
[6] McDowell was subsequently interviewed by police and denied any involvement
in Rachel’s death. Instead, he claimed that she had been assaulted by a man
and woman at the riverfront. The police confronted McDowell about
inaccuracies in his story, and McDowell admitted his story was untrue.
McDowell later wrote a letter to Rachel’s parents, admitting that he attacked
her after she had punched and kicked him.
[7] An autopsy revealed the extent of Rachel’s injuries, which were horrifying. She
suffered black eyes and a bruise on her chin. She also had a large contusion on
the right side of her face that was the result of a “serious injury” that itself
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would have caused unconsciousness and even death from internal bleeding.
Trial Tr. pp. 189–90. The injury causing the contusion was so severe that it also
caused multiple, potentially-fatal skull fractures and a subdural hematoma. The
subdural hematoma caused Rachel’s brain to swell and was also a potentially
fatal injury. Id. at 199, 217. These injuries were caused by blunt force trauma.
Rachel also sustained bruises to her forehead, left temple, behind the left ear,
and on her chin and neck. The autopsy also revealed an injury to the right
temporalis muscle,2 which was so severe that it tore the muscle loose from the
skull. Rachel also had several bruises on the top of her scalp and multiple
bruises on her extremities.
[8] Rachel also sustained bruises to her small and large intestines and a hematoma
to one of her kidneys. In addition, Rachel’s breastbone was fractured as a result
of a severe blow to the chest. Another blow caused multiple fractured ribs on
her left side. These ribs were “displaced” fractures, where the bone was so
damaged that it came apart. Trial Tr. p. 203. Such fractures require a significant
amount of force. The chest injuries also caused damage to her lungs, which
would have caused bleeding in the left lung. There was also a large laceration to
Rachel’s liver, such that the organ was almost severed in two. This injury
caused massive, fatal bleeding and was identified as the main cause of death.
2
The temporalis, or temporal muscle, is used to close the jaw. See PubMed Health, Temporalis Muscle,
https://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0025338/.
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[9] On June 6, 2012, the State charged McDowell with murder, Class D felony
obstruction of justice, and Class A misdemeanor false informing. A three-day
jury trial commenced on August 26, 2013. At trial, the State dismissed the lesser
two counts and proceeded only on the murder charge. During defense counsel’s
opening statement, he admitted that McDowell and Rachel had gotten into a
physical fight but argued that the jury should find McDowell guilty of
involuntary manslaughter.
[10] McDowell testified on his own behalf and claimed that he and Rachel had
gotten into a fight about missing pills. According to him, Rachel pushed him
and knocked him down, and he pushed her and knocked her down. He then
locked himself in the bathroom, but Rachel began to pound on the door. When
he opened the door, he punched Rachel in the chin; when she retaliated by
spitting in his face, he slammed her to the ground and pressed his knee into her
stomach to restrain her, which he believed in hindsight to be what caused the
fatal injury to her liver. He maintained that he did not intend to kill Rachel.
[11] McDowell’s trial counsel requested that the jury be instructed on involuntary
manslaughter, but the trial court rejected the instruction. The trial court did,
however, instruct the jury regarding voluntary manslaughter. In closing
arguments to the jury, McDowell’s trial counsel argued that there was
insufficient evidence to show that McDowell intended to kill Rachel. Focusing
on the medical examiner’s conclusion that the cause of death was the laceration
to the liver and loss of blood, McDowell’s counsel argued:
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To convict [McDowell] of murder, you have to say that [he]
knew that by pressing down on her liver with his body weight
with his knee, and by hitting her, that he was going to kill her,
that he knew he was going to split that liver. That’s what you got
to get to. That’s how you got to get to murder from here. And
that’s a big jump.
Trial Tr. p. 756. The jury found McDowell guilty as charged, and the trial court
subsequently sentenced McDowell to sixty-five years of incarceration.
[12] On direct appeal, McDowell presented three issues: (1) whether the trial court
committed fundamental error by admitting into evidence certain autopsy
photographs and the videotape of the police interview with McDowell in which
he stated that he had previously battered his ex-wife; (2) whether the trial court
committed fundamental error when it admitted McDowell’s testimony
regarding his legal status at the time of the crime and the past incident of
domestic violence between him and his ex-wife; and (3) whether the trial court
abused its discretion when it admitted a picture of a tattoo on McDowell’s back
that referenced gang affiliation. McDowell v. State, 82A01-1311-CR-492, 2014
WL 3408336, slip op. at 1 (Ind. Ct. App. July 11, 2014). We rejected
McDowell’s appellate claims and affirmed his conviction. Id. at 3.
[13] On December 22, 2014, McDowell filed a pro se petition for post-conviction
relief. On December 7, 2016, McDowell, now represented by counsel from the
Indiana Public Defender’s Office, filed an amended petition for post-conviction
relief. The post-conviction court held an evidentiary hearing on the petition on
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February 17, 2017, and entered findings of fact and conclusions of law on
September 29, 2017, denying McDowell’s petition. McDowell now appeals.
Post-Conviction Standard of Review
[14] Our standard of review of claims that a post-conviction court erred in denying
relief is well settled:
Post-conviction proceedings are not “super appeals” through
which convicted persons can raise issues they failed to raise at
trial or on direct appeal. Rather, post-conviction proceedings
afford petitioners a limited opportunity to raise issues that were
unavailable or unknown at trial and on direct appeal. A post-
conviction petitioner bears the burden of establishing grounds for
relief by a preponderance of the evidence. On appeal from the
denial of post-conviction relief, the petitioner stands in the
position of one appealing from a negative judgment. To prevail
on appeal from the denial of post-conviction relief, the petitioner
must show that the evidence as a whole leads unerringly and
unmistakably to a conclusion opposite that reached by the post-
conviction court.
Where, as here, the post-conviction court makes findings of fact
and conclusions of law in accordance with Indiana Post-
Conviction Rule 1(6), we cannot affirm the judgment on any
legal basis, but rather, must determine if the court’s findings are
sufficient to support its judgment. Although we do not defer to
the post-conviction court’s legal conclusions, we review the post-
conviction court’s factual findings under a clearly erroneous
standard. Accordingly, we will not reweigh the evidence or judge
the credibility of witnesses, and we will consider only the
probative evidence and reasonable inferences flowing therefrom
that support the post-conviction court’s decision.
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Manzano v. State, 12 N.E.3d 321, 325 (Ind. Ct. App. 2014) (citations omitted)
trans. denied.
Ineffective Assistance of Trial Counsel
[15] In Timberlake v. State, our supreme court summarized the law regarding claims
of ineffective assistance of trial counsel as follows:
A defendant claiming a violation of the right to effective
assistance of counsel must establish the two components set forth
in Strickland v. Washington, 466 U.S. 668 (1984). First, the
defendant must show that counsel’s performance was deficient.
This requires a showing that counsel’s representation fell below
an objective standard of reasonableness, and that the errors were
so serious that they resulted in a denial of the right to counsel
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced
the defense. To establish prejudice, a defendant must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
Counsel is afforded considerable discretion in choosing strategy
and tactics, and we will accord those decisions deference. A
strong presumption arises that counsel rendered adequate
assistance and made all significant decisions in the exercise of
reasonable professional judgment. The Strickland Court
recognized that even the finest, most experienced criminal
defense attorneys may not agree on the ideal strategy or the most
effective way to represent a client. Isolated mistakes, poor
strategy, inexperience, and instances of bad judgment do not
necessarily render representation ineffective. The two prongs of
the Strickland test are separate and independent inquiries. Thus,
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if it is easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice . . . that course should be followed.
753 N.E.2d 591, 603 (Ind. 2001) (citations and quotations omitted).
I. Reckless Homicide Instruction
[16] McDowell first argues that his trial counsel was ineffective for failing to request
that the jury be instructed with regard to the lesser-included offense of reckless
homicide. When it comes to instructing a jury on lesser-included offenses, our
supreme court explained that it has:
developed a three-part test that trial courts should perform when
called upon by a party to instruct on a lesser included offense to
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. 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. 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. 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. “[I]t is
reversible error for a trial court not to give an instruction, when
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requested, on the inherently or factually included lesser offense”
if there is such an evidentiary dispute.
Webb v. State, 963 N.E.2d 1103, 1106 (Ind. 2012) (citing and quoting Wright v.
State, 658 N.E.2d 563, 566–67 (Ind. 1995)).
[17] McDowell claims that his trial counsel was ineffective because he initially
argued that McDowell should be convicted of involuntary manslaughter, even
though that crime was not an included offense of the charged crime of murder,
and that this mistake was compounded when his counsel failed to request an
instruction regarding reckless homicide. This left the jury with the choice to
convict McDowell of murder, the lesser-included offense of voluntary
manslaughter, or acquit him. McDowell’s trial counsel argued, unsuccessfully,
for acquittal based on the argument that McDowell never had the intent to kill
Rachel. To address McDowell’s arguments, it is necessary to consider the
definition of murder and its included offenses.
[18] The crime of murder is defined as knowingly3 or intentionally4 killing another
human being. Ind. Code § 35-42-1-1(1). But a person who knowingly or
intentionally kills another human being while acting under “sudden heat”5
3
“A person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high
probability that he is doing so.” Ind. Code § 35-41-2-2(b).
4
“A person engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious objective
to do so.” I.C. § 35-41-2-2(a).
5
“Sudden heat occurs when a defendant is provoked by anger, rage, resentment, or terror, to a degree
sufficient to obscure the reason of an ordinary person, prevent deliberation and premeditation, and render the
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commits voluntary manslaughter. Ind. Code § 35-42-1-3(a). “The existence of
sudden heat is a mitigating factor that reduces what otherwise would be murder
under section 1(1) of this chapter to voluntary manslaughter.” Id. at § 3(b).
Thus, voluntary manslaughter is an included offense of murder. Watts v. State,
885 N.E.2d 1228, 1232 (Ind. 2008). Reckless homicide is defined,
unsurprisingly, as recklessly6 killing another human being. Ind. Code § 35-42-1-
5. The only distinguishing feature in the elements of murder and reckless
homicide is the mens rea required of each offense. Evans v. State, 727 N.E.2d
1072, 1082 (Ind. 2000). Reckless homicide is therefore an inherently included
offense of murder. Id.
[19] McDowell claims that his trial counsel was ineffective for failing to request that
the jury be instructed regarding reckless homicide. He argues that this obviously
would have been a better strategy than arguing that McDowell committed
involuntary manslaughter, which was foreclosed by the language of the
charging information.7 Had the jury been instructed on reckless homicide,
defendant incapable of cool reflection.” Conner v. State, 829 N.E.2d 21, 24 (Ind. 2005). “Sudden heat excludes
malice, and neither mere words nor anger, without more, provide sufficient provocation.” Id.
6
“A person engages in conduct ‘recklessly’ if he engages in the conduct 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).
7
Involuntary manslaughter is committed when a person kills another human being while committing or
attempting to commit (1) a Level 5 or Level 6 felony that inherently poses a risk of serious bodily injury, (2) a
Class A misdemeanor that inherently poses a risk of serious bodily injury, or (3) battery. Ind. Code § 35-42-1-
4(b). Involuntary manslaughter is not an inherently included lesser offense of murder. Evans v. State, 727
N.E.2d 1072, 1081 (Ind. 2000). However, it may be a factually included lesser offense if the charging
information alleges that the killing was accomplished by means that would be a battery. Id.
As noted above, McDowell’s trial counsel initially argued to the jury that McDowell should be convicted of
involuntary manslaughter. However, this possibility was foreclosed by the language of the charging
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McDowell claims, there was a reasonable probability that he would have been
convicted of this lesser crime. We disagree.
[20] The nature of the injuries to Rachel’s body indicate a brutal, extended beating.
She was viciously beaten in the head, sufficient to cause the temporal muscle to
be torn from the skull. And the injuries to the right side of her face included
multiple skull fractures and were severe enough to have caused death from
internal bleeding or the resulting swelling of the brain. Rachel had bruises on
her intestines and a hematoma on one of her kidneys. Her ribs were not only
broken, but so damaged that they literally came apart and injured her lungs.
This sort of injury requires a significant amount of force. Moreover, her liver
was not only lacerated, but almost severed in two.
[21] The beating inflicted on Rachel necessary to cause such injuries was so severe
that no reasonable person could have found it to have been inflicted only
recklessly without also having been done knowingly, i.e., “to engage in conduct
with an awareness that the conduct has a high probability of resulting in death.”
Lyttle v. State, 709 N.E.2d 1, 3 (Ind. 1999) (citing Ind. Code § 35-41-2-2(b)). To
beat someone as severely as Rachel was beaten goes well beyond the realm of
acting recklessly, i.e., “with a plain, conscious, and unjustifiable disregard of
information, which alleged simply that McDowell “did knowingly or intentionally kill another human being,
to-wit: Rachel Lomax[.]” Direct Appeal App. p. 17. Because the charging information did not allege facts
that would establish a battery, involuntary manslaughter was not a factually included offense. See Champlain
v. State, 681 N.E.2d 696, 702 (Ind. 1997) (holding that involuntary manslaughter was not a factually included
lesser offense of the charged crime of murder because the charging information did not assert a battery but
merely alleged that defendant knowingly killed the victim).
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harm that might result and is a substantial deviation from accepted standards of
conduct.” Id. (citing I.C. § 35-41-2-2(c)).
[22] Accordingly, even if McDowell’s trial counsel had requested an instruction on
reckless homicide, such an instruction could not have been properly given. See
id. at 3 (holding that trial court did not err in refusing to instruct jury on reckless
homicide where defendant repeatedly hit victim with a baseball bat and
therefore jury could not have found defendant guilty of recklessly killing the
victim without also finding that he knowingly killed the victim); Horan v. State,
682 N.E.2d 502, 508 (Ind. 1997) (holding that trial court properly denied
defendant’s request for reckless homicide instruction where defendant
repeatedly kicked and punched the victim in such a severe manner that the jury
could not conclude the lesser offense of reckless homicide was committed but
not the greater offense of knowing murder); see also Dearman v. State, 743 N.E.2d
757, 760 (Ind. 2001) (holding that trial court properly refused to instruct the jury
on reckless homicide and involuntary manslaughter where evidence showed
that victim died of being struck in head with large concrete block); Jones v. State,
948 N.E.2d 1197, 1201 (Ind. Ct. App. 2012) (holding that trial court properly
refused jury instructions on reckless homicide and involuntary manslaughter
where evidence showed that defendant punched victim in the chest, then placed
his hands on his neck until bloody foam came out of victim’s mouth), trans.
granted, opinion adopted, 966 N.E.2d 1256 (Ind. 2012).
[23] Instructing the jury on reckless homicide would have been improper given the
nature of Rachel’s injuries and the severity of the beating necessary to inflict
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them. And even if the reckless homicide instruction had been given, there is no
reasonable possibility that the jury would have concluded that McDowell only
recklessly, as opposed to knowingly, killed Rachel, given the extent of her
injuries. Accordingly, McDowell’s trial counsel was not ineffective for failing to
request that the jury be instructed on reckless homicide.
[24] The cases cited by McDowell are distinguishable, in that the facts in those cases
permitted a reasonable jury to conclude that the defendant acted recklessly but
not knowingly. See Webb v. State, 963 N.E.2d 1103, 1108 (Ind. 2012) (holding
on direct appeal that trial court erred by refusing reckless homicide instruction
where there was evidence that defendant did not know whether the gun he used
to shoot his girlfriend was loaded); Fisher v. State, 810 N.E.2d 674, 680 (Ind.
2004) (holding that post-conviction court erred in concluding that defendant
was not denied ineffective assistance of appellate counsel where counsel failed
to present claim that trial court erred in refusing to instruct the jury on reckless
homicide where defendant admitted the shooting but claimed it was accidental
and there was evidence that defendant had been “playing around” with the
gun); Brown v. State, 770 N.E.2d 275, 281 (Ind. 2002) (holding on direct appeal
that trial court erred in refusing reckless homicide instruction where
erroneously excluded evidence indicated that defendant’s husband’s fatal act of
striking child in the head with a large wooden paddle was accidental); Garrett v.
State, 756 N.E.2d 523, 529 (Ind. Ct. App. 2001) (holding on direct appeal that
trial court did not err in giving instruction on reckless homicide over
defendant’s objection where evidence showed that defendant was frustrated
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with her two-year-old son and squeezed his neck for “too long” while playing
with him, thereby crushing his larynx, and causing the child to stop breathing),
trans. denied; Sharkey v. State, 672 N.E.2d 937, 941 (Ind. Ct. App. 1996) (holding
that post-conviction court erred in concluding that defendant was not deprived
of the ineffective assistance of counsel where counsel failed to request a jury
instruction on reckless homicide where the evidence showed that defendant got
into an altercation with a prostitute during which he put his hands on her neck
and squeezed tightly, attempting to push her away, when she went limp and
motionless), trans. denied.8
[25] We agree with the State that in each of the above cases, there was a relatively
brief act that resulted in the victim’s death (shooting a gun that might have been
loaded, playing around with a handgun, striking a small child with a paddle,
squeezing a small child’s neck during play). Each of these actions could have
been performed recklessly. In contrast, the evidence here shows that Rachel was
subject to an extensive beating, not a momentary action, such that there is no
way that McDowell could have acted merely recklessly without also acting
knowingly, i.e., with an awareness that the conduct has a high probability of
resulting in death.
8
We further agree with the State that the two other cases McDowell cites are inapposite. In both Lehman v.
State, 730 N.E.2d 701 (Ind. 2000), and Wilkins v. State, 716 N.E.2d 955 (Ind. 1999), the defendants were
convicted of murder, and our supreme court simply noted that the jury in each case had been instructed on
reckless homicide. Lehman, 730 N.E.2d at 703; Wilkins, 716 N.E.2d at 956. However, in neither case did the
court comment on the propriety of these instructions.
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[26] In summary, the post-conviction court did not clearly err in concluding that
McDowell’s trial counsel was not ineffective for failing to request an instruction
on reckless homicide. Although his trial counsel was mistaken with regard to
the availability of the lesser-included offense of involuntary manslaughter, he
did not err by failing to request an instruction on reckless homicide. The facts of
this case show that the victim was so savagely beaten that there was no serious
evidentiary dispute that McDowell acted recklessly without also acting
knowingly. Thus, the trial court would properly have rejected such an
instruction had one been requested, and there is no reasonable probability that,
had such an instruction been given, the jury would have convicted McDowell
of reckless homicide.
II. Propriety of Voluntary Manslaughter Instruction
[27] McDowell also argues that his trial counsel was ineffective for failing to object
to the trial court’s instructions regarding voluntary manslaughter. His argument
regarding the failure to object to the jury instructions is twofold. He argues that
his trial counsel should have objected to Final Instruction 5 because it
misallocated the burden of proof on the element of sudden heat, and he also
argues that his counsel should have objected to Final Instruction 4 because it
improperly instructed the jury with regard to the lesser-included offense of
voluntary manslaughter.
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A. Final Instruction 5
[28] We first address McDowell’s contention that Final Instruction 5 was
“confusing and internally inconsistent” regarding the burden of proof as to
sudden heat. Appellant’s Br. at 39. Final Instruction 5 provided as follows:
The included offense of Voluntary Manslaughter is defined by
statute 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 existence of sudden heat is a mitigating factor that reduces
what otherwise would be Murder to Voluntary Manslaughter.
The State has the burden of proving beyond a reasonable doubt that the
defendant was not acting under sudden heat.
To convict the defendant, the State must prove each of the
following elements:
The defendant
1. Knowingly or intentionally
2. killed
3. Rachel Lomax.
If the State failed to prove each of these elements beyond a
reasonable doubt, you should find the defendant not guilty of
Voluntary Manslaughter.
If the State did prove each of these elements beyond a reasonable
doubt, and you further find the defendant did the killing while
acting in sudden heat, you should find the defendant guilty of
Voluntary Manslaughter.
Direct Appeal App. p. 144 (emphasis added).
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[29] McDowell argues that, after listing the elements of murder, this instruction
informs the jury that, to convict the defendant of voluntary manslaughter, it
needed to find that the defendant acted in sudden heat. This, he argues,
suggests that the burden is on the State to prove that the defendant was acting in
sudden heat. We disagree.
[30] The complained-of portion of the instruction merely explains that the defendant
can be convicted of voluntary manslaughter only if the jury finds the existence
of sudden heat, which is indeed the law. See Watts, 885 N.E.2d at 1232.
Moreover, Final Instruction 5 explicitly informs the jury that “[t]he State has
the burden of proving beyond a reasonable doubt that the defendant was not
acting under sudden heat.” Direct Appeal App. p. 144 (emphasis added). Thus,
the instruction did not misinform the jury that the State had to prove the
existence of sudden heat, but properly instructed it that the State had to prove
that the defendant did not act under sudden heat.
[31] McDowell’s citation to Eichelberger v. State, 852 N.E.2d 631 (Ind. Ct. App.
2006), trans. denied, is therefore unavailing. In that case, the jury instruction
incorrectly told the jury that the State had to prove the existence of sudden heat to
obtain a conviction for voluntary manslaughter, not that the State had to prove
the absence of sudden heat to obtain a conviction for murder. Id. at 639. Because
Final Instruction 5 was not improper, McDowell’s trial counsel did not perform
deficiently by failing to object to this instruction.
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B. Final Instruction 4
[32] McDowell also contends that his trial counsel was ineffective for failing to
object to Final Instruction 4, which reads:
If you find that the State has failed to prove any one of the essential
elements of the charged crime of Murder, you should then decide whether
the State has proved beyond a reasonable doubt all elements of the
included crime of Voluntary Manslaughter which has been defined for
you.
If the State failed to prove each of the essential elements of the
included crime beyond a reasonable doubt, the defendant should
be found not guilty. If the State did prove each of the elements of
the included crime beyond a reasonable doubt, you should find
the defendant guilty of the lesser included crime. You must
resolve reasonable doubt in favor of the accused downward from
the specific crime charged through the included offense. You
may not find the defendant guilty of more than one offense.
Where there is a reasonable doubt existing in your minds as to
which degree of an offense the defendant may be guilty of, he
must be convicted of the lower degree only. If there is reasonable
doubt as to all, then you must find the defendant not guilty.
Direct Appeal App. p. 143 (emphasis added).
[33] McDowell claims that this instruction is erroneous and that his trial counsel
was ineffective for failing to object to it. Specifically, he claims that the first
sentence misstates the law by instructing the jury to consider the lesser-included
offense of voluntary manslaughter only if it first determines that the State has
not proved all the elements of murder. As the State concedes, this is incorrect.
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[34] In Watts, our supreme court explained that, although voluntary manslaughter is
a lesser-included offense of murder, it is not a typical lesser included offense.
885 N.E.2d at 1232. A typical lesser-included offense requires proof of some,
but not all, of the elements of the greater offense. Id. Thus, a defendant
convicted of the greater offense necessarily commits the lesser. Id. With
voluntary manslaughter, however, the existence of “sudden heat” is a
mitigating factor, not an element, that the State must prove in addition to the
elements of murder. Id. Accordingly, a conviction for murder does not mean
that a defendant could also have been convicted of voluntary manslaughter,
because sudden heat must be separately proved. Id.
[35] Accordingly, for the jury to convict McDowell of voluntary manslaughter, it
would have had to first conclude that the State did prove the elements of
murder, then consider whether the Sate negated the existence of sudden heat.9
Final Instruction 4, however, informs the jury that it should decide whether
McDowell committed the lesser-included offense if it finds that the State failed
to prove one of the elements of murder. As explained in Watts, although this is
true of most lesser-included offenses, it is not true of voluntary manslaughter.
With voluntary manslaughter, the failure to prove one of the essential elements
9
“Although the State has the burden of negating the existence of sudden heat beyond a reasonable doubt, in
order to inject that issue at all the defendant must point to some evidence supporting sudden heat whether
this evidence be in the State’s case or the defendant’s own.” Jackson v. State, 709 N.E.2d 326, 328 (Ind. 1999).
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of the greater offense of murder is also the failure to prove one of the essential
elements of the lesser offense of voluntary manslaughter. See id.
[36] McDowell claims that his counsel was ineffective for failing to object to Final
Instruction 4 on these grounds, citing McWhorter v. State, 970 N.E.2d 770 (Ind.
Ct. App. 2012), trans. granted, summarily aff’d in relevant part, 993 N.E.2d 1141
(Ind. 2013).10 In McWhorter, the defendant claimed that his trial counsel was
ineffective for failing to object to the trial court’s instruction on voluntary
manslaughter, which informed the jury that if the State failed to prove the
elements of murder, it must find the defendant not guilty of murder. Id. at 777.
Immediately after this, however, it stated, “[y]ou may then consider any
included crime,” and set forth the elements of voluntary manslaughter. Id.
(emphasis added).
[37] The McWhorter court held that the instruction improperly directed the jury to
consider the lesser included offense of voluntary manslaughter only if the State
failed to prove all the elements of murder. Id. Thus, the jury was effectively
instructed to “find that McWhorter did not knowingly or intentionally kill [the
victim], but that he did knowingly or intentionally kill [the victim] while acting
in sudden heat.” Id. We held that trial counsel’s failure to object to this
10
In this court’s opinion in McWhorter, we also held that the defendant could be retried on a charge of
reckless homicide but not voluntary manslaughter. 970 N.E.2d at 778. The State sought transfer, challenging
only this aspect of our opinion. Our supreme court granted transfer and concluded that the defendant could
be retried on charges of both reckless homicide and voluntary manslaughter. McWhorter, 993 N.E.2d at 1144–
45. The court summarily affirmed our conclusion that the defendant’s trial counsel rendered ineffective
assistance. Id. at 1145 n.3.
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improper instruction was deficient performance. Id. We further held that the
defendant was prejudiced by this deficiency because the jury was advised that
the defendant could be convicted of voluntary manslaughter if less than all the
elements of murder were proven. Id. at 778. We therefore concluded that the
defendant was prejudiced because he was convicted of voluntary manslaughter,
which, according to the jury instructions, could only be proved on a failure to
find all the elements of murder, yet a conviction for voluntary manslaughter
requires proof of all the elements of murder.11 Id.
[38] Here, it is undisputed that Final Instruction 4 was improperly worded. But it is
well-settled that jury instructions are to be considered as a whole, not in
isolation. O’Connell v. State, 970 N.E.2d 168, 172 (Ind. Ct. App. 2012). To
constitute an abuse of discretion, the instructions taken as a whole must
misstate the law or otherwise mislead the jury.” Id. And the jury here was
instructed to consider the instructions as a whole. Direct Appeal App. p. 140.
11
We also held that “McWhorter was prejudiced in that he ultimately stood convicted of Voluntary
Manslaughter, an offense not initially charged by the State and one upon which McWhorter did not proffer
evidence or request instruction.” Id. Upon further reflection, we do not think that this is a proper
consideration in determining whether the defendant was prejudiced, as it is irrelevant that the defendant did
not request the lesser-included offense instruction. It has long been held that, even if a defendant is charged
with a greater offense, the State may request that the jury be instructed on a lesser-included offense so long as
there is evidence to support the lesser offense. See Garrett, 756 N.E.2d at 529–30 (holding that, even though
State charged defendant only with murder, it was proper to instruct the jury on the lesser included offense of
reckless homicide, over defendant’s objection, where there was some evidence to support the lesser-included-
offense instruction); cf. Watts, 885 N.E.2d at 1230 (holding that it was error to give, over defendant’s
objection, State’s requested instruction on lesser-included offense of voluntary manslaughter where there was
no evidence to support the lesser-included-offense instruction).
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[39] Here, Final Instruction 5 properly set forth the law regarding voluntary
manslaughter. That is, Final Instruction 5 informed the jury: that voluntary
manslaughter is defined as knowingly or intentionally killing another human
being while acting under sudden heat; that the existence of sudden heat is a
mitigating factor that reduces what would otherwise be murder to voluntary
manslaughter; and that the State had the burden of proving that McDowell was
not acting under sudden heat. Final Instruction 5 then provided:
To convict the defendant, the State must prove each of the
following elements:
The defendant
1. Knowingly or intentionally
2. killed
3. Rachel Lomax.
If the State failed to prove each of these elements beyond a
reasonable doubt, you should find the defendant not guilty of
Voluntary Manslaughter.
If the State did prove each of these elements beyond a reasonable
doubt, and you further find the defendant did the killing while
acting in sudden heat, you should find the defendant guilty of
Voluntary Manslaughter.
Id. at 144.
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[40] Thus, unlike in McWhorter,12 here the jury was properly instructed that if the
State failed to prove that McDowell knowingly or intentionally killed Rachel, it
was to find him not guilty of voluntary manslaughter, but that if the State did
prove that he knowingly or intentionally killed Rachel while acting in sudden
heat (which the State had the burden to disprove), it should find him guilty of
voluntary manslaughter. Viewing the instructions as a whole, we do not think
that the jury was misinformed of the law regarding voluntary manslaughter.
The post-conviction court therefore did not clearly err in rejecting McDowell’s
claim of ineffective assistance of counsel for failing to object to these jury
instructions.
Conclusion
[41] The post-conviction court did not clearly err in concluding that McDowell was
not denied the effective assistance of trial counsel. The evidence shows that
McDowell brutally beat the victim in such a manner that he could not have
simply been acting recklessly. Thus, even if his trial counsel had requested an
instruction on reckless homicide, it could not have been properly given, and if
12
McDowell also cites Roberson v. State, 982 N.E.2d 452 (Ind. Ct. App. 2013), which we also find to be
distinguishable. In that case, the jury was instructed that, if the State proved the defendant guilty of murder, it
“need not” consider the included crimes of voluntary manslaughter, involuntary manslaughter, and reckless
homicide. Id. at 457. And when reading the instruction, the trial court worsened this error by telling the jury
that it “must not” consider the included crimes if it found the defendant guilty of murder. Id. at 458. Here,
the jury was informed of the opposite in Final Instruction 4, i.e., that it should consider the lesser included
offense if it found that the State failed to prove the greater offense of murder. Moreover, the instruction in
Roberson, further misinformed the jury that the State had the burden of proving sudden heat, and no
instruction properly informed the jury that the State had the burden of disproving sudden heat. Id. at 460–61.
Here, the jury was properly informed as to the burden of proof, and the improper wording of Final
Instruction 4 was cured by the correct statement of law contained in Final Instruction 5.
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such an instruction had been given, there is no reasonable probability that the
jury would have convicted him of reckless homicide while acquitting him of
murder. Furthermore, the jury instructions properly set forth the elements of the
included offense of voluntary manslaughter, and the error in Final Instruction 4
was cured by the proper statement of law contained in Final Instruction 5.
Accordingly, we affirm the judgment of the post-conviction court.
[42] Affirmed.
Riley, J. and May, J. concur.
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