Attorney for Appellant Attorneys for Appellee
Michael N. Pagano Steve Carter
Funk & Foster Attorney General of
Indiana
Hammond, Indiana
Nandita G. Shepherd
Deputy Attorney General
Indianapolis, Indiana
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 45S03-0306-PC-251
Darryl Eugene Fisher,
APPELLANT (DEFENDANT BELOW),
v.
State Of Indiana
Appellee (Plaintiff below).
_________________________________
Appeal from the Lake Superior Court, No. 45G02-9308-CF-193
The Honorable Natalie Bokota, Magistrate
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 45A03-0207-
PC-241
_________________________________
June 17, 2004
Rucker, Justice.
The question we address is whether the failure to raise on appeal the
trial court’s refusal to give a reckless homicide instruction as a lesser-
included offense to murder amounts to ineffective assistance of appellate
counsel. On the facts of this case, we conclude that it does.
Facts and Procedural History
In August 1993, Darryl Eugene Fisher was charged with murder arising
out of a shooting incident at a Gary restaurant. The facts as recounted by
the Court of Appeals on direct review are as follows:
[O]n the evening of August 2, 1993, Kizmond Alexander,
La’Montrell Thomas, and two other boys were riding bicycles
around their neighborhood. After leaving an arcade around 11:00
p.m., the boys went to a diner to eat. The boys entered the
lobby, approached the take-out window, and waited for someone to
take their orders. When no one came, the boys knocked on the
door leading to the seated area. Fisher came to the door. The
boys, who knew Fisher from the neighborhood, asked him to get
someone to take their orders. Fisher closed the door and went
back inside.
When no one again came to the window, the boys knocked on
the door a second time. Fisher opened the door. Fisher and one
of the boys just stared at each other for a few seconds.
Kizmond smiled and began to laugh. Fisher came out through the
doorway carrying a beer in his hand. Kizmond asked Fisher not
to throw the beer on him. Fisher responded that he was not
throwing beer, but was “slinging lead.” Fisher then pulled a
handgun from his back pocket. Kizmond turned and began to walk
out of the door. Fisher placed the handgun against Kizmond’s
back and fatally shot Kizmond.
State v. Fisher, No. 45A04-9405-CR-188, slip op. at 2, 3 (Ind. Ct. App.
June 20, 1995), trans. not sought.
At trial the State claimed the shooting was an act of retaliation.
The defense characterized the shooting as an accident or the result of
reckless grandstanding. At the close of trial defense counsel tendered an
instruction on the lesser offense of reckless homicide, which the trial
court declined to give. Ultimately the jury found Fisher guilty of murder.
On direct appeal, counsel did not raise the issue of the refused reckless
homicide instruction. The Court of Appeals affirmed the conviction.
In May 2001, Fisher filed a petition for post-conviction relief
contending, among other things, that appellate counsel rendered ineffective
assistance for failing to raise the issue of the refused instruction. At a
hearing on the petition, the State asserted “had this trial happened today,
there would be error in not giving the instruction, if it was a correct
statement of the law.” Appellant’s App. at 201 (emphasis added). The
dispute at the hearing centered on whether at the time of Fisher’s trial
reckless homicide was an inherently included lesser offense of murder. The
post-conviction court concluded that it was, but nonetheless denied
Fisher’s petition for post-conviction relief on the ground that the jury
could not have concluded that the lesser offense of reckless homicide was
committed but not the greater offense of murder. Id. at 132. In essence,
according to the post-conviction court, there was no serious evidentiary
dispute about the element distinguishing the greater offense from the
lesser offense. On review a divided panel of the Court of Appeals affirmed
the judgment of the post-conviction court. However it did so on grounds
different from those on which the post-conviction court relied. The Court
of Appeals determined (i) “the state of the law clearly requiring
instructions for inherently lesser-included offenses was not settled until
after Fisher’s direct appeal had been decided” and thus (ii) the court
could not “fault appellate counsel for choosing to raise issues that may
have appeared at the time to serve Fisher’s interests more effectively.”
Fisher v. State, 785 N.E.2d 320, 326-27 (Ind. Ct. App. 2003). Having
previously granted transfer, we now reverse the judgment of the post-
conviction court.
Discussion
Fisher contends appellate counsel rendered ineffective assistance for
not raising as error on direct appeal the refused reckless homicide
instruction. We review claims of ineffective assistance of appellate
counsel using the same standard applicable to claims of trial counsel
ineffectiveness. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000).
The defendant must show that appellate counsel was deficient in his
performance and that the deficiency resulted in prejudice. Id.
Ineffective assistance claims at the appellate level of proceedings
generally fall into three basic 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). Fisher’s claim is
based on the second category.
This Court has noted the need for a reviewing court to be deferential
to appellate counsel on this type of claim:
[T]he reviewing court should be particularly sensitive to the
need for separating the wheat from the chaff in appellate
advocacy, and should not find deficient performance when
counsel’s choice of some issues over others was reasonable in
light of the facts of the case and the precedent available to
counsel when that choice was made.
Timberlake v. State, 753 N.E.2d 591, 605 (Ind. 2001) (quoting Bieghler, 690
N.E.2d at 194), cert. denied, 537 U.S 839 (2002). We employ a two-part
test to evaluate “waiver of issue” 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. at 605-
06 (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1985)). Stated
somewhat differently, “[a] defendant may establish that his appellate
counsel’s performance was deficient where counsel failed to present a
significant and obvious issue for reasons that cannot be explained by any
strategic decision.” Ben-Yisrayl v. State, 738 N.E.2d 253, 261 (Ind.
2000).
On direct appeal, counsel presented three issues: (1) whether
evidence that Fisher had previously fired a gun at one of the witnesses was
improperly admitted; (2) whether the trial court properly instructed the
jury on the defense of accident; and (3) whether the evidence was
sufficient to support Fisher’s conviction. See Fisher, No. 45A04-9405-CR-
188, slip op. at 2. As to issue one, counsel for Fisher argued that the
probative value of the evidence was outweighed by its prejudicial impact
and therefore should have been excluded under Indiana Evidence Rule 403.
Id. at 3. The Court of Appeals disagreed because the evidence tended to
disprove Fisher’s defense that he shot the victim by accident. Id. at 4.
As to issue number two, Fisher argued the trial court erred in giving its
own jury instruction regarding the defense of accident. The Court of
Appeals determined that Fisher waived this issue because although
submitting an accident instruction, Fisher did not object to the
instruction actually given by the trial court. Id. at 4. Concerning
Fisher’s sufficiency of the evidence claim, the Court of Appeals observed
that Fisher’s argument was merely a request to reweigh the evidence, which
the Court declined to do.
The issues counsel raised on direct appeal had little chance of
success. Courts of review rarely reverse a jury’s guilty verdict on
sufficiency of evidence grounds; the law is settled that failure to object
to a jury instruction given by the trial court waives the issue for review;
and even where meritorious, claims of Rule 404 violations, as with other
evidentiary rules, are subject to harmless error analysis. By contrast the
unraised issue stands on a different footing. We agree with our colleagues
that “the state of the law clearly requiring instructions for inherently
lesser-included offenses was not settled until after Fisher’s direct appeal
had been decided.” Fisher, 785 N.E.2d at 326. However, in our view this
fact is not dispositive of whether the lesser-included instruction issue
was significant, obvious, and clearly stronger than the issues counsel
presented on direct appeal.[1]
There is no question that at the time of Fisher’s trial and appeal in
1993-1995, the law on the matter of lesser-included offenses was in a state
of flux. One line of authority characterized by this Court’s opinions in
Sills v. State, 463 N.E.2d 228 (Ind. 1984) and Compton v. State, 465 N.E.2d
711 (Ind. 1984) advanced the view that the trial court was not required to
give an instruction on an alleged lesser-included offense where the
charging information closely tracked the statute. See Compton, 465 N.E.2d
at 713; Sills, 463 N.E.2d at 234. This was the apparent ground on which
the trial court relied in rejecting Fisher’s tendered instruction. On the
other hand, another line of authority characterized by this Court’s
opinions in Aschliman v. State, 589 N.E.2d 1160 (Ind. 1992) and Lynch v.
State, 571 N.E.2d 537 (Ind. 1991) stood for the proposition that the
wording of a charging document is not necessarily determinative of whether
the trial court should give an instruction on a lesser-included offense.
See Aschliman, 589 N.E.2d at 1161; Lynch, 571 N.E.2d at 539.
Acknowledging the ambiguity of the law governing lesser-included
offenses, this court finally clarified the matter in Wright v. State, 658
N.E.2d 563 (Ind. 1995). Writing “to resolve the unfortunate confusion that
has arisen in the cases that address when a trial court should instruct
juries on lesser included offenses,” id. at 565, we developed a three-part
test that trial courts should perform when called upon by a party to
instruct a jury on a lesser-included offense of 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. Id. at 566. 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. Id. at 567. 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. Id. 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.
Id. “[I]t is reversible error for a trial court not to give an
instruction, when requested, on the inherently or factually included lesser
offense” if there is such an evidentiary dispute. Id.
Although Wright disapproved of or overruled in part several cases from
this Court as well as the Court of Appeals, Wright nonetheless relied upon
then-existing case authority to fashion a three-part test. For example we
observed, “At least since our decision in Lawrence v. State, (1978), 268
Ind. 330, 337, 375 N.E.2d 208, 212, analysis of this issue has spoken of
two steps. We believe that the explicit three-step analysis above should
eliminate any confusion that may have been caused by Lawrence’s two-step
approach.” Id. It is true that appellate counsel cannot be held
ineffective for failing to anticipate or effectuate a change in existing
law. Trueblood v. State, 715 N.E.2d 1242, 1258 (Ind. 1999). However,
precisely because the law in this area was unsettled and in a state of flux
at the time of Fisher’s trial and appeal, the issue of whether the trial
court erred in refusing to give a lesser-included instruction on reckless
homicide was both significant and obvious as well as clearly stronger than
the issues raised. See Pelmer v. White, 877 F.2d 1518, 1523 (11th Cir.
1989) (“That the law is unsettled on a point does not mean the legal basis
for arguing the point is unavailable.”). And appellate counsel’s failure
to present the issue on direct appeal was not a strategy-based decision.
See supra n.1. Indeed had counsel raised the issue, the analysis now
widely referred to as the “Wright test” could very well have been known as
the “Fisher test.”
In any event applying the analysis to the facts of this case, as to
the first two parts of the Wright test, the only element distinguishing
murder and reckless homicide is the defendant’s state of mind: reckless
homicide occurs when the defendant “recklessly” kills another human being
and murder occurs when the killing is done “knowingly” or “intentionally.”
Compare Ind. Code § 35-42-1-5 with I.C. § 35-42-1-1(1). Reckless conduct
is action taken 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). By contrast, a
person engages in conduct “knowingly” if the person is aware of a “high
probability” that he or she is doing so. I.C. § 35-41-2-2(b). Thus,
reckless homicide is an inherently included lesser offense of murder. See
Davenport v. State, 749 N.E.2d 1144, 1150 (Ind. 2001). The determinative
issue is whether the evidence produced a serious evidentiary dispute
concerning Fisher’s state of mind that would justify giving the requested
instruction.
This is an appeal from the denial of post-conviction relief. The
petitioner in a post-conviction proceeding bears the burden of establishing
grounds for relief by a preponderance of the evidence. Ind. Post-
Conviction Rule 1(5); Saylor v. State, 765 N.E.2d 535, 547 (Ind. 2002).
When appealing from the denial of post-conviction relief, the petitioner
stands in the position of one appealing from a negative judgment. Saylor,
765 N.E.2d at 547. On review, we will not reverse the judgment unless the
evidence as a whole unerringly and unmistakably leads to a conclusion
opposite that reached by the post-conviction court. Id. Further, the post-
conviction court in this case entered findings of fact and conclusions of
law in accordance with Indiana Post-Conviction Rule 1(6). “A post-
conviction court’s findings and judgment will be reversed only upon a
showing of clear error—that which leaves us with a definite and firm
conviction that a mistake has been made.” Ben-Yisrayl, 729 N.E.2d at 106
(quotation omitted). In this review, findings of fact are accepted unless
clearly erroneous, but no deference is accorded conclusions of law. Woods
v. State, 701 N.E.2d 1208, 1210 (Ind. 1998). The post-conviction court is
the sole judge of the weight of the evidence and the credibility of
witnesses. Id.
Based on an examination of the trial transcript and record of
proceedings, the post-conviction court concluded there was no serious
evidentiary dispute concerning Fisher’s culpability. Specifically the post-
conviction court found that Fisher: (1) had served in the military and had
been trained in the use of firearms; (2) brought the handgun to the
restaurant that night; (3) knew the handgun was loaded; (4) placed the
handgun in a position of easy access (in his back pocket); (5) drew the
handgun and pointed it at the victim stating that he was not throwing beer
but slinging lead; (6) poked the victim in the back with the handgun; and
(7) fired the weapon at the victim’s back at point blank range.
Appellant’s App. at 132-33. The post-conviction court also determined that
the handgun was semi-automatic and if functioning properly the trigger must
have been pulled in order to fire. Id. at 132. On the other hand,
according to the post conviction court, if the pin was faulty, as Fisher
contended, then he was aware of that fact and based on his military
training would appreciate the dangers of a malfunctioning deadly weapon.
Id.
It is undeniable that the evidence recounted by the post-conviction
court supports the jury’s guilty verdict of murder. However when
addressing the question of whether there is a serious evidentiary dispute,
the court must evaluate the evidence presented by both parties. Wright,
658 N.E.2d at 567. In support of his claim, Fisher contends that the
central issue at trial was his culpability. During opening statements
trial counsel said, among other things, “The issue is not going to be
whether or not Darryl Fisher actually fired the weapon. Mr. Fisher is
going to testify, he will tell you what occurred. What is going to be the
issue is whether or not he knowingly or intentionally fired that weapon or
the other side of it, whether or not it was accidental.” Appellant’s App.
at 147. At trial Fisher testified that he did not intend to shoot Kizmond
but was only “playing around” with the gun. Tr. at 302. After the gun
discharged, Fisher testified that he “started screaming, I’m sorry, I’m
sorry” and dialed 911 for an ambulance. Id. at 299, 313. This testimony
was corroborated by at least two State’s witnesses. Enoch Boyd testified
that when the gun discharged, “[Fisher] said oh, man, I’m sorry,” and “was
running around crying with the gun in his hand.” Id. at 126, 176. La’
Montrell Thomas testified that Fisher had played around with a gun before
and therefore did not believe Fisher was serious about shooting anyone when
he pointed the weapon at Kizmond. Id. at 219. As a result when Thomas saw
Fisher with the handgun, Thomas continued to look “at the menu.” Id. at
222-23. Thomas also testified that once Kizmond was struck, Fisher seemed
“[s]tunned like that [sic] he did it or something . . . .” Id. at 223.
Although rejecting Fisher’s defense of accident, which would thereby
have completely absolved Fisher of any liability for his conduct, the jury
could have returned a conviction of reckless homicide instead of murder
depending on how it weighed and credited all of the evidence. See
Nordstrom v. State, 627 N.E.2d 1380, 1383 (Ind. Ct. App. 1994) (holding
reckless homicide proven beyond a reasonable doubt where defendant shot
wife at close range allegedly believing gun would not discharge), trans.
denied. As such, the trial court’s refusal to instruct the jury on the
lesser-included offense of reckless homicide was reversible error. And
appellate counsel’s failure to present this claim on direct appeal amounted
to ineffective assistance. The post-conviction court’s finding to the
contrary leaves us with a definite and firm conviction that a mistake has
been made.
Conclusion
We reverse the judgment of the post-conviction court. This cause is
remanded for further proceedings not inconsistent with this opinion.
Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.
-----------------------
[1] We also note that counsel’s failure to raise as an issue the refused
jury instruction was not based on any strategic decision. See Ben-Yisrayl,
738 N.E.2d at 261. The post-conviction court specifically found,
“Appellate counsel testified that he had no strategic reason for not
raising the lesser included instruction issue on direct appeal. In fact,
appellate counsel said that he could not recall seeing the instruction on
reckless homicide which the defense tendered and the court denied as it
appears on page 57 of the Record of Proceedings.” Appellant’s App. at 130.