ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Gregory F. Zoeller
Public Defender of Indiana Attorney General of Indiana
James T. Acklin Ellen H. Meilaender
Deputy Public Defender Deputy Attorney General
FILED
Indianapolis, Indiana Indianapolis, Indiana
Jul 01 2010, 2:23 pm
In the CLERK
of the supreme court,
Indiana Supreme Court
court of appeals and
tax court
No. 49S04–0903–PC–102
CHE B. CARTER,
Appellant (Petitioner below),
v.
STATE OF INDIANA,
Appellee (Respondent below).
Appeal from the Marion Superior Court, No. 49G04–9006–PC–76589
The Honorable Patricia J. Gifford, Judge
The Honorable Steven J. Rubick, Magistrate
On Petition to Transfer from the Indiana Court of Appeals, No. 49A04–0807–PC–444
July 1, 2010
Shepard, Chief Justice.
Che B. Carter has sought post-conviction relief, contending that appellate counsel was
deficient for failing to challenge a jury instruction on attempted murder. The post-conviction
court was likely wrong in concluding that Carter‘s lawyer performed within the range of
reasonableness when she omitted this issue, on which there was considerable flux at the time.
Nevertheless, it seems apparent that Carter did not suffer sufficient prejudice to warrant setting
aside the verdict.
Facts and Procedural History
This is the twentieth year since Carter committed his crimes, and this is his fourth appeal.
On June 20, 1990, Carter went to the home of the victim, who had filed a small claims case
against his mother. Carter remained on the victim‘s porch while they discussed the case, then he
broke open the storm door and began strangling the victim with his hands. He also held her
down and struck her with a tire iron. Carter pulled the victim to the front door and shouted for
his associate Mitchell to come into the house. Carter held the victim down and choked her while
Mitchell began to rape her. Carter removed several rings from the victim‘s fingers while
Mitchell was raping her. Before losing consciousness, the victim saw the men taking a stereo
speaker and one of the men told the other to make sure she was dead so she could not identify
them.1
After a joint jury trial with his codefendant, Carter was convicted on counts of burglary,
robbery, rape, and attempted murder and sentenced for a total of ninety years.2 Appellate
1
The victim‘s testimony was that one of her attackers said to the other, ―[M]ake sure she‘s dead before
we leave because she can identify us.‖ (Tr. at 262.) At the time of trial, the victim did not remember the
two defendants saying this. (Tr. at 315–16.) She did, however, remember telling this to police officers.
(Tr. at 262.) The first person she spoke to after the attack, testified she told him that one of her attackers
said, ―[M]ake sure the bitch is dead before we leave.‖ (Tr. at 388–90.) The first officer she spoke to
testified she told him she heard ―[D]on‘t leave until she is dead.‖ (Tr. at 410–11.)
2
Carter was also charged with confinement, but the jury found him not guilty. (Ex. A at 91, 154–55.)
2
counsel Belle Choate filed Carter‘s Brief of Appellant on March 26, 1992. She raised four
issues. The Court of Appeals affirmed the convictions but remanded for re-sentencing after
finding, sua sponte, that the enhancements of the robbery and burglary convictions violated
double jeopardy. Carter v. State, No. 49A02–9108–CR–361, slip op. at 6 (Ind. Ct. App. July 16,
1992) (Carter I) (also found at Ex. B at 6).
After this and a second successful appeal, Carter‘s sentence was ultimately reduced to
sixty years. Carter v. State, No 49A05–0408–CR–436 (Ind. Ct. App. Apr. 27, 2005) (Carter II)
(remanding to comply with Blakely v. Washington, 542 U.S. 296 (2004)); Carter v. State, No.
A02–0508–PC–774 (Ind. Ct. App. July 24, 2006) (Carter III) (affirming 60-year sentence); (App.
at 26–27, 37–40).
On November 13, 2006, Carter filed an amended petition for post-conviction relief,
claiming ineffective assistance of his appellate counsel for failure to argue that the instructions
on attempted murder did not sufficiently inform the jury that one must intend to commit murder
while taking a substantial step toward committing that crime.
The post-conviction court denied the petition, finding that Carter had not ―overcome the
strongest presumption of adequate assistance by appellate counsel.‖ (App. at 161–66.) The
post-conviction court noted that the law on attempted murder instructions was in flux at the time
Choate wrote her brief and that multiple decisions sanctioning instructions like the challenged
instruction Number 19 were ―still in effect both when [Carter] was convicted and when his
appellate brief was filed.‖ (App. at 165.) Finally, the post-conviction court reasoned that ―the
choice made by Ms. Choate not to raise the issue was reasonable when that choice was made.‖
(App. at 165–66 (citations omitted).)
A divided Court of Appeals reversed the post-conviction court. Carter v. State, 898
N.E.2d 315 (Ind. Ct. App. 2008) (Brown, J., dissenting). We granted transfer. Id. (Transfer
Granted March 5, 2009).
3
Assistance of Appellate Counsel
When evaluating an ineffective assistance of counsel claim, we apply the two-part test
articulated in Strickland v. Washington, 466 U.S. 668 (1984). See Helton v. State, 907 N.E.2d
1020, 1023 (Ind. 2009). Ineffective assistance of appellate counsel claims fall into three
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) (citing Lissa Griffin, The Right to
Effective Assistance of Appellate Counsel, 97 W. Va. L.Rev. 1, 21–22 (1994)). Carter‘s claim
fits the second category.
To prevail on a claim about appellate counsel‘s failure to raise an issue, the first prong of
the Strickland test requires Carter to show from the information available in the trial record or
otherwise known to appellate counsel that appellate counsel failed to present a significant and
obvious issue and that this failure cannot be explained by any reasonable strategy. Ben-Yisrayl
v. State, 738 N.E.2d 253, 260–61 (Ind. 2000) (citing Strickland, 466 U.S. at 687). We ―consider
the totality of an attorney‘s performance to determine whether the client received constitutionally
adequate assistance.‖ Bieghler, 690 N.E.2d at 194.
In Bieghler, this Court approved the two-part test used by the Seventh Circuit to evaluate
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. Id.
(quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)). We have also said that ―to prevail
on a claim of ineffective assistance of appellate counsel, ‗a defendant must show from the
information available in the trial record or otherwise known to appellate counsel that appellate
counsel failed to present a significant and obvious issue and that this failure cannot be explained
by any reasonable strategy.‘‖ Timberlake v. State, 753 N.E.2d 591, 606 (Ind. 2001) (quoting
Ben-Yisrayl, 738 N.E.2d at 260–61).
4
The current proceeding has focused on appellate counsel‘s failure to challenge instruction
Number 19, which told the jury that murder could be ―knowing or intentional‖ and that
attempted murder required proof of a knowing step toward a ―knowing and intentional killing,‖
as follows:
The crime of attempt is defined by statute as follows:
A person attempts to commit a crime when, acting with the
culpability required for the commission of the crime, he 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. However,
an attempt to commit murder is a class A felony.
The crime of murder is defined by statute as the knowing or
intentional killing of another human being.
To convict the defendant the State must have proved each
of the following elements:
The defendants Che B. Carter and Wayne Mitchell
1. Knowingly
2. Engaged in conduct by striking [the victim] on or about her head by
means of a deadly weapon, that is a tire tool and strangling her neck
rendering her unconscious.
3. That the conduct was a substantial step toward the commission of the
crime of murder: that is the knowing and intentional killing of another
human being.
If the State failed to prove each of these elements beyond a
reasonable doubt, you should find the Defendant not guilty.
If the State did prove each of these elements beyond a
reasonable doubt, you should find the defendant guilty of the crime
of attempt murder, a class A felony.
(Ex. A at 112.)
5
Carter‘s claim is that his lawyer should have appealed on grounds that this instruction
violated Spradlin v. State, 569 N.E.2d 948 (Ind. 1991). In Spradlin we held that attempted
murder instructions ―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.‖ Id. at 950. The attempted murder instruction in Spradlin read:
To convict the defendants, the State must have proved each of the
following elements:
The defendants
1. knowingly or intentionally
2. strike, stab and cut the body of Robert Grubbs
3. that the conduct was a substantial step toward the commission of
the crime of murder.
Id. at 950–51. In reversing, we noted, ―Nowhere in the instructions is there a requirement that
the State prove that the Spradlins, at the time that they struck, stabbed, and cut the victims,
intended to kill such victims.‖ Spradlin, 569 N.E.2d at 951. In evaluating the jury instruction,
we cited Smith v. State, 459 N.E.2d 355 (Ind. 1984), and Zickefoose v. State, 270 Ind. 618, 388
N.E.2d 507 (1979).
However, the Court observed in Arthur v. State, 663 N.E.2d 529, 531 (Ind. 1996), that
―some confusion remained‖ over the reach of Spradlin until we decided Taylor v. State, 616
N.E.2d 748 (Ind. 1993)—after the Court of Appeals issued its opinion affirming Carter‘s
convictions.
Still, the fact that ―the state of the law . . . was not settled until after [the] direct appeal
had been decided . . . is not dispositive of whether the [unraised] issue was significant, obvious,
and clearly stronger than the issues counsel presented on direct appeal. Fisher v. State, 810
N.E.2d 674, 677–78 (Ind. 2004).
6
While examination of the several issues Choate raised as compared to the one she did not
might prove illuminating, assessing the likelihood of prejudice appears more productive.
Strickland, 466 U.S. at 697 (―If it is easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice, . . . that course should be followed.‖) We therefore assume for
sake of argument Carter‘s contention that Choate should have argued that the attempted murder
instruction was defective.
While the instruction that attempted murder required a knowing step toward an
intentional killing was substandard, it is apparent that the jury was told what the law required.
During closing argument, both Carter and the State argued to the jury that the State was required
to prove intent to kill in order to convict Carter of attempted murder. (Ex. F at 9–10, 33–39.)
The prosecutor declared during argument that the State had to prove each defendant
―intended to kill‖ the victim and pointed to evidence that the prosecutor believed demonstrated
this intent with regard to the attempted murder charge. (Ex. F. at 8–10.) He went on to point to
the acts of hitting the victim in the head with a tire iron and strangling her as acts that were
substantial steps toward killing the victim but that ―simply failed‖ to achieve that result and that
―additional evidence‖ of their ―intent‖ was the statement, made by one of them, that they had to
kill the victim and could not let her live because she could identify them and their failure to seek
any medical help for her. (Ex. F. at 9–10.) Most significantly, he told the jury that to convict the
defendants of attempted murder, the State had ―to prove that each man, either aiding, abetting, or
directly as a principal intended—committed some act, intended to kill her‖ and it was only for
some reason not of their own doing that they failed to achieve that objective. (Ex. F at 8–9.)
After repeating that the defendants‘ ―main intent‖ was to murder the victim, the
prosecutor acknowledged that the jury might conclude that if this was true, the defendants could
not logically have intended to confine the victim. (Ex. F at 11.) The prosecutor said he ―might
agree‖ with that reasoning and that if the jury wanted to ―drop‖ the confinement charge on that
basis, that was ―fine.‖ (Ex. F at 11.)
7
Defense counsel also argued that the State had to prove that Carter intended to kill the
victim and that the evidence did not support a conclusion that he acted with that intent because,
although Carter could have killed the victim, he did not do so. (Ex. F at 33–39.)
As the jury commenced its deliberations, therefore, it had before it these explanations
about intent, an instruction that Carter‘s knowing actions must have constituted a substantial step
towards an intentional killing, and the evidence described above. We conclude that there was
insufficient prejudice flowing from Choate‘s performance to warrant relief.
Conclusion
We affirm the post-conviction court.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
8