Attorneys for Appellant Attorneys for Appellee
Susan K. Carpenter Steve Carter
Public Defender of Indiana Attorney General of
Indiana
Mario Joven Richard C. Webster
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
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__
In the
Indiana Supreme Court
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No. 46S04-0405-PC-233
Lawrence Thomas,
Appellant (Plaintiff below),
v.
State of Indiana,
Appellee (Defendant below).
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Appeal from the LaPorte Superior Court 1, No. 46D01-9303-CF-024
The Honorable Walter P. Chapala,, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 46A04-0306-
PC-295
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May 31, 2005
Sullivan, Justice
The Court of Appeals held that Lawrence Thomas had been the victim of
ineffective assistance of trial counsel and was entitled to have his
conviction for Murder set aside. The basis for this conclusion was that
his lawyer had not objected when the trial court did not instruct the jury
on the specific elements of the crime of dealing in cocaine, the felony
underlying the State’s Felony Murder charge. However, Thomas was not
harmed by this omission because he was properly charged with, and the jury
properly instructed on, the charge of Knowing or Intentional Murder.
Background
A decade ago, petitioner Lawrence Thomas was convicted of Murder. He
appealed that conviction but the Court of Appeals affirmed in an
unpublished opinion. Thomas v. State, 659 N.E.2d 266 (Ind. Ct. App. 1995)
(mem.). Utilizing the “post-conviction relief” rules adopted by this Court
that permit persons to challenge their convictions and sentences even after
they have been affirmed on appeal, Thomas sought to have his conviction set
aside. The post-conviction court denied his request; its decision was
reversed by the Court of Appeals. Thomas v. State, 803 N.E.2d 1218 (Ind.
Ct. App. 2004). We granted the State's petition to transfer, Thomas v.
State, 812 N.E.2d 806, (Ind. 2004) (mem), and now affirm the decision of
the post-conviction court.
Discussion
Under Indiana law, a person can be guilty of the crime of Murder in
several ways. One such way is by knowingly or intentionally killing
another human being. A second is by killing another human being while
committing or attempting to commit certain felonies such as arson,
burglary, or dealing in cocaine. The first of these two ways is often
referred to as the crime of “Knowing or Intentional Murder,” and is
established by Indiana Code § 35-42-1-1(1); the second as “Felony Murder,”
established by Indiana Code § 35-42-1-1(3). The difference between what
the State must prove to obtain a conviction for each of these two types of
murder is that, for Knowing or Intentional Murder, the State must prove
that the killing was committed “knowingly or intentionally”; for Felony
Murder, the State need not prove that the defendant acted with any
particular mental state—the killing could be totally accidental—so long as
the State does prove that the killing occurred while the defendant was
committing (or attempting to commit) a specified felony.
In the case before us, it appears that there was a fair amount of
imprecision at trial over whether Thomas was being tried for Knowing or
Intentional Murder or for Felony Murder. In this collateral attack on his
conviction, Thomas essentially contends that he was denied his Sixth
Amendment right to the effective assistance of trial and appellate counsel
because his counsel did not rectify the imprecision.
We find it unnecessary to set forth the underlying facts of the crime
of which Thomas was convicted. The interested reader is referred to the
opinion of the Court of Appeals in this regard. Thomas, 803 N.E.2d at 1220-
21. It is enough for our purposes to say that the charging information in
this case alleged that Thomas was guilty of Felony Murder because he had
“knowingly or intentionally kill[ed] another human being, namely Sheldon
Byrd while dealing in cocaine or a narcotic drug (Ind. Code 35-48-4-1). . .
.” Tr. at 79.
The imprecision in the charging instrument should be apparent. While
it alleges that Thomas was guilty of Felony Murder, it sets forth all of
the elements necessary to convict a person of Knowing or Intentional
Murder, in addition to including a felony that would support a conviction
for fFelony mMurder. Put differently, while proving either the elements of
Felony Murder alone or the elements of Knowing or Intentional Murder alone
would be enough to convict him of the crime of Murder, by charging Thomas
in this way, the State took upon itself not just the burden ofsuggested
that it would attempt to proving prove him guilty both of Felony Murder but
and also of Knowing or Intentional Murder. See State v. Griffin, 717
N.E.2d 73, 85 (Ind. 1999) (noting thatwhere a Felony Murder jury
instruction that misstates misstated the law by adding language requiring
specific culpability obligates the State to prove not only that the
defendant participated in the underlying felony, but also that defendant’s
participation in the killing was knowing or intentional).
This imprecision carried through to the instructions given to the jury
at Thomas’s trial. It was given both a preliminary and a final instruction
that read as follows:
The statute defining the offense of Murder, which was in force at the
time of the offense charged reads (in part) as follows:
35-42-1-1(3)
A person who: knowingly or intentionally kills another human being;
while committing or attempting to commit: (A) dealing in cocaine or a
narcotic drug (Ind. Code 35-48-4-1), commits murder, a felony.
Tr. at 27.
The jury returned a verdict of guilty and the trial court sentenced
Thomas to 40 years in prison, the standard sentence for Murder at the time.
Thomas, 803 N.E.2d at 1221. Neither the jury’s verdict nor the trial
court’s judgment of conviction or sentencing order distinguished between
Knowing or Intentional Murder and Felony Murder.
In its opinion, the Court of Appeals resolved this ambiguity by
concluding that Thomas was charged and convicted of Felony Murder. Thomas,
803 N.E.2d at 1221. Our reading of the record, however, compels us to
conclude otherwise. While the jury verdict, court judgment, and sentencing
order were silent as to whether Thomas was convicted of Knowing or
Intentional Murder or Felony Murder, both the charging information and jury
instructions contain each of the elements of Knowing or Intentional Murder.
We therefore conclude in light of the jury’s unanimous verdict, that the
State met its burden of proof on the charge of Knowing or Intentional
Murder. Our discussion and analysis continues with this finding in mind.
I
In seeking post-conviction relief from his Murder conviction, Thomas
contends that his lawyer should have done two things at trial: first, that
he should have challenged the jury instruction on grounds that it did not
set forth the specific elements of the crime of dealing in cocaine; and
second, that he should have challenged the jury verdict on grounds that it
did not specify whether it had found him guilty of Knowing or Intentional
Murder or of Felony Murder. Thomas also contends that his lawyer on direct
appeal should have challenged as “fundamental error” entitling him to
reversal of his conviction both the trial court judge’s failure to set
forth the specific elements of the crime of dealing in cocaine and the
trial court judge’s failure to determine whether the jury had found him
guilty of Knowing or Intentional Murder or of Felony Murder.[1]
While it is bedrock law that a defendant in a criminal case is
entitled to have the jury instructed on all of the elements of the charged
offense, In re Winship, 397 U.S. 358, 373-74 (1970), we perceive no harm to
Thomas from the fact that his jury was not instructed on all of the
elements of the offense of dealing in cocaine. This is because the jury
was instructed on all of the elements of the offense of Knowing or
Intentional Murder, with respect to which the reference to dealing in
cocaine was mere surplusage. When the jury found him guilty of Knowing or
Intentional Murder, that is to say, that the State had met its burden of
proof on each and every element of the offense of Knowing or Intentional
Murder, it simply did not matter how completely the jury was instructed on
the offense of dealing in cocaine
An individual’s Sixth Amendment right to the effective assistance of
counsel is not violated unless there is prejudice from counsel’s deficient
performance. Strickland v. Washington, 466 U.S. 668, 691 (1984). Given
that the omission of the elements of dealing in cocaine from the jury
instruction was totally harmless, trial counsel’s failure to seek an
instruction on the elements of dealing in cocaine and appellate counsel’s
failure to claim that the trial judge’s failure to give such an instruction
constituted fundamental error did not constitute ineffective assistance of
counsel. See Neder v. United States, 527 U.S. 1, 10 (1999) (holding that
the omission of an element is subject to harmless-error analysis).
It is important to note that part of the reason why there is no harm
here from the failure to instruct on the specific elements of dealing in
cocaine is that, even though the charging instrument may have referred to
the offense as Felony Murder, Thomas was in fact charged with all of the
elements of Knowing and Intentional Murder and each of those elements was
contained in the jury charge as well. It would have been a different case
entirely if Thomas had been charged with only the elements of Felony
Murder; in that circumstance, it would have been necessary to provide the
jury with the specific elements of the underlying felony.
II
As to Thomas’s claim that counsel was ineffective for failing to
challenge the form of verdict for failing to specify whether the jury had
found him guilty of Knowing or Intentional Murder or of Felony Murder, we
again find any error to have been totally harmless. The jury was
instructed in such a way that it could not have returned a verdict of
guilty without finding that the State had met its burden of proof on all of
the elements of Knowing or Intentional Murder. The trial court imposed the
standard sentence for Murder; no additional time was imposed for dealing
cocaine. In this respect, the case differs from Hobson v. State, 675
N.E.2d 1090 (Ind. 1996), cited by Thomas. In Hobson, the trial court
instructed the jury that it could return a verdict of guilty on the charge
of Murder under either a Knowing or Intentional Murder or a Felony Murder
theory. The court then gave to the jury a general murder verdict form.
Because Knowing or Intentional Murder has elements different from Felony
Murder, and because it was unclear of which crime the jury found him
guilty, we found his conviction defective. Id. at 1094-1095. Cf. Schad v.
Arizona, 501 U.S. 624, 641 (1991) (holding neither the Sixth, Eighth, nor
Fourteenth Amendments prohibited conviction where the trial court had
instructed the jury that it could return a verdict of guilty on the charge
of murder under either a premeditated murder or a felony murder theory).
III
Since any errors with respect to the failure of the jury instructions
to set forth the elements of dealing in cocaine or the failure of the
verdict form to distinguish between Knowing or Intentional Murder and
Felony Murder were harmless, Thomas was not deprived of his right to
effective assistance of appellate counsel when his lawyer did not raise
these issues on direct appeal.
Conclusion
Having previously granted transfer, we summarily affirm the opinion of
the Court of Appeals as to the issue discussed in footnote 1 and affirm the
judgment of the post-conviction court.
Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.
-----------------------
[1] As the Court of Appeals pointed out, Thomas’s claims of error on the
part of the trial court judge (as opposed to his claims that trial and
appellate counsel were ineffective for failing to challenge the alleged
errors) were available on direct appeal and so cannot be raised in this
proceeding. Thomas, 803 N.E.2d at 1219 n.1. We summarily affirm the Court
of Appeals on this point. Ind. Appellate Rule 58(A)(2).