dissenting.
The statement introduced in evidence to impeach Williams was clearly given to the police as an integral part of the guilty plea process. Its use for impeachment purposes at trial constituted clear and fundamental error. Tyree v. State (1988) 2d Dist. Ind.App., 518 N.E.2d 814. Such fundamental error may not be ignored under the rationale that Tyree should not receive retroactive application 1 (see opinion at 348), nor under the rationale utilized both by Judges Hoffman and Staton, that the impeaching evidence did not form "a substantial part of the State's case" (see opinion at 351 (Staton, J., concurring)).
Neither should we decline to reverse upon grounds that the decision of the Fourth District in its Memorandum Decision of August 30, 1976, Williams v. State (1976), No. 3-475 A 70 constitutes the "law of this case". The latter decision held that admission of the impeaching statement was not reversible error. I would follow our Supreme Court's decision in State v. Lewis (1989) Ind., 548 N.E.2d 1116, and hold that "law of the case", unlike res judicata, is "only a discretionary rule of practice". 543 N.E.2d at 1118. I believe the Fourth District decision to be in error and I would decline to give it binding "law of the case" effect. |
Furthermore, presentation of the issue at this stage does not violate the principles of finality as set forth in various decisions *352treating the matter of repetitive post-conviction petitions. See, e.g., Smith v. State (1990) 2d Dist. Ind.App., 559 N.E.2d 838, trans. denied. Appellant's trial counsel also represented him upon the direct appeal and in the initial post-conviction relief proceeding. Accordingly, present counsel had no opportunity to present the issue until filing of the petition here reviewed.
This chronology and status of legal representation also leads to a conclusion that the present claim to ineffective assistance of counsel should be addressed and I find such claim to have merit. Trial counsel rendered ineffective assistance in that he himself tendered the instruction which invited the jury to convict if the evidence of guilt did not convince beyond a reasonable doubt. Furthermore, although a reasonable doubt instruction was given, the instruction here challenged told the jury that they might acquit if they had reasonable doubt or if their "minds are evenly balanced on the subject of guilt or innocence". Such instruction is clearly erroneous and its giving constituted fundamental error. Thomas v. State (1982) 4th Dist. Ind.App., 442 N.E.2d 700. In this respect, the conclusion of the post-conviction court that the instruction "was a proper statement of law" (Record at 90) is clearly erroneous and requires reversal upon two grounds: (1) fundamental error as appropriately presented by present counsel who raised it in the amended petition for post conviction relief; and (2) incompetent counsel at the trial, direct appeal and initial post-conviction stages.
I also disagree with the majority in holding that the crime of robbery was correctly charged. Although the phrase "by fear" does appear in the charge, it is buried in the recitation of the elements which constitute theft. An extremely careful reading of the charge is necessary to discern that robbery, rather than theft, forms the heart of the allegation. It is not sufficiently "direct and unmistakable" in its terms and reversal is warranted upon this basis as well as upon the "evenly balanced evidence" instruction. Maynard v. State (1987) 1st Dist. Ind.App., 508 N.E.2d 1346, trams. denied.
I would reverse and remand with instrue-tions to grant post-conviction relief by setting aside the conviction and for further proceedings not inconsistent with this dissent.
. The Tyree decision did not enunciate a completely new principle of law in this state. Rather, it applied existing Indiana case law precedent in reaching the holding that statements by defendant establishing factual basis for a guilty plea are inadmissible.