dissenting.
I respectfully disagree that Taylor received ineffective assistance of trial counsel in this case, as I do not believe that he has carried his burden to show a reasonable probability that he would have been acquitted had the jury been instructed on the elements of felony murder. In addition, I also do not believe that Taylor received ineffective assistance of appellate counsel, an issue not reached by the majority. In my view, Taylor would not have been entitled to a new trial had his appellate counsel raised the instruction issue on direct appeal and so cannot show prejudice from counsel's failure to do so. Consequently, I dissent.
I think we can all agree that the jury should have been instructed on the elements of robbery, as the underlying felony of the felony murder charge against Taylor. The failure to insist on this by Taylor's trial counsel may well constitute deficient performance. In the context of a claim of ineffective assistance, however, Taylor must also show prejudice. The question is not whether error occurred, but whether there exists a reasonable probability that he would have been acquitted had it not occurred. I think Taylor has fallen far short of carrying his burden on this point.
It is as well-settled that "[eJrrors in the giving or refusing of instructions are harmless where a conviction is clearly sustained by the evidence and the jury could not properly have found otherwise." Dill v. State, 741 N.E.2d 1230, 1233 (2001) (citing Crawford v. State, 550 N.E.2d 759, 762 (Ind.1990); Stout v. State, 479 N.E.2d 563, 565 (Ind.1985); Battle v. State, 275 Ind. 70, 77, 415 N.E.2d 39, 43 (Ind.1981); Grey v. State, 273 Ind. 439, 448, 404 N.E.2d 1348, 1353 (Ind.1980); Pinkerton v. State, 258 Ind. 610, 622, 283 N.E.2d 376, 383 (Ind.1972)). It is clear to me that such is the case here.
Sherry Flynn testified that Orue and Taylor were in a crack house on the afternoon of May 19, 2003, and told her that they intended to go to Hunt's apartment to obtain some crack cocaine on credit. (Tr. 870-47, 877-79). Wanda Newbry testified that Orue told her that she had gone to Hunt's apartment to rob her; that Orue knew that Hunt would open the door for her; that "[they" took $5000 in cash, jewelry, and drugs; and that Hunt "got shot in the head in the foyer." Trial Tr. p. 1106. Michael Ginyard testified that at some point after June of 2008, Thomas told him that he had forced his way into Hunt's apartment, hit her with a pipe, and made off with drugs and money. (Tr. 1004-05). William Philbrook testified that Taylor told him that he had put a "cap [in] that bitch Gwen." Tr. p. 949. Carolyn Keeney testified that she saw Taylor, Thomas, and Orue leaving Hunt's apartment, saw that Thomas was carrying a gun, saw that Taylor dropped a two-to-three-inch roll of cash on the ground, and that her view was unimpeded. (Tr. 733-42). Flynn testified that she saw Thomas in possession of a gun shortly after Hunt's killing. (Tr. 887). Angela Salazar, Thomas's girlfriend at the time, testified that on the night of Hunt's death, Thomas had a gun and told her that Hunt's death was the result of a "robbery gone bad[.]" Trial Tr. p. 920. Keeney further testified that approximately one- and-one-half weeks after Hunt's death, Taylor held a knife to her throat and told her to forget what she had seen that day. *721(Appellant's App. 726, 727, 759-60). In light of this overwhelming evidence, it seems unlikely in the extreme that the jury would have acquitted Taylor if only it had been instructed on robbery.
Moreover, it is not as though the jury was completely in the dark on the elements of robbery. During voir dire, the prosecutor instructed all prospective jurors (necessarily including all who made it onto the jury) that robbery consisted of "tak[ing] property from the presence of another person either by force or fear." Trial Tr. p. 78. During the jury selection process, not one prospective juror expressed any difficulty understanding the concept of felony murder as it applied in this case. During closing, the prosecutor reiterated the requirement that property must be taken from another person by the use of force or fear. (Tr. 1405).
Finally, I would also take into account the issues that were actually contested at trial. Significantly, whether a robbery actually occurred was not one of those issues. The only contested trial issue was identity, and, to that end, the strategy employed by all three codefendants was to attack the credibility and motivation of many of the State's witnesses. In light of the jury's guilty verdicts, these attacks obviously did not work. In my view, only something likely to have caused the jury to disbelieve all of the State's key witnesses would satisfy the prejudice requirement here, and it would be absurd to conclude that an instruction on the elements of robbery would have caused the jury to assess the credibility of the State's witnesses any differently than it did. In light of the overwhelming evidence of Taylor's guilt, the fact that the jury was told the elements of robbery at least twice, and that the defense strategy would not have been affected in the least by an instruction on robbery, I conclude that Taylor has fallen far short of establishing a reasonable probability that he would have been acquitted had the jury been so instructed.
Moreover, I do not believe that Taylor has established that he received ineffective assistance of appellate counsel, again on the basis that he cannot establish the required prejudice. Taylor claims that, had his appellate counsel raised the robbery instruction issue on direct appeal, he would have won his direct appeal. Taylor contends that the omission of the robbery instruction amounted to fundamental error.
Fundamental error is error that represents a blatant violation of basic principles rendering the trial unfair to the defendant and thereby depriving the defendant of fundamental due process. The error must be so prejudicial to the rights of the defendant as to make a fair trial impossible. In determining whether a claimed error denies the defendant a fair trial, we consider whether the resulting harm or potential for harm is substantial. The element of harm is not shown by the fact that a defendant was ultimately convicted. Rather, it depends upon whether the defendant's right to a fair trial was detrimentally affected by the denial of procedural opportunities for the ascertainment of truth to which he would have been entitled. In determining whether fundamental error occurred in the giving of instructions, we consider all the relevant information provided to the jury including that in closing arguments and other instructions. There is no due process violation where all such information, considered as a whole, does not mislead the jury as to a correct understanding of the law.
Davis v. State, 835 N.E.2d 1102, 1107-08 (Ind.Ct.App.2005), trans. denied. Taylor cites Lacy v. State, 438 N.E.2d 968 (Ind.*7221982), for the proposition that it is fundamental error for a trial court to fail to give an instruction setting forth all of the elements of an offense. Id. at 971. First, Lacy does not stand for the proposition that Taylor claims it does. The passage in question reads, "[Wle have no doubt a total failure to give an instruction detailing the elements of the offense would be available as reversible error on appeal absent compliance with the contemporaneous objection requirement[,]" id., which applies only when a trial court fails to instruct on any of the elements of the crime. Lacy simply does not apply in this case, as the trial court did instruct the jury on all of the elements of felony murder other than the elements pertaining to robbery.
Moreover, I agree with the Davis court, which noted that this language was dictum and represented an overbroad reading of United States Supreme Court precedent in any event. Davis 835 N.BE.2d at 1109. The Davis court also noted that Indiana courts had concluded that omissions in jury instructions did not constitute fundamental error:
In Elliott [v. State, 450 N.E.2d 1058 (Ind.Ct.App.1983)], the defendant was charged with involuntary manslaughter, but the jury instructions did not include an instruction on proximate cause. 450 N.E.2d. at 1063. The Elliott court declined to find that the omission constituted fundamental error because there was no question that the victim died as a result of the battery, and therefore, no prejudice had resulted from the omission. Id. at 1064-65. In reaching this conclusion, the Elliott court relied upon several federal civreuit court cases as well as an early Indiana supreme court case. Id.; see United States v. Park, 421 U.S. 658, 673-74, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975) (stating that failure to instruct jury that defendant had the responsibility and authority to prevent or correct violation and failed to do so was not an abuse of discretion where jury could not have failed to be aware, based on the instructions as a whole and in context of the trial, that defendant's responsibility, and not his position, was at issue); see also Rokvic v. State, 194 Ind. 450, 457-58, 143 N.E. 357, 359 (1924) (stating that omission of instruction that vehicle must be taken without owner's consent was not prejudicial to defendant where undisputed evidence established that stolen vehicle had been taken without owner's consent); see also Stafford v. State, 736 N.E.2d 326, 332 (Ind.Ct.App.2000) (concluding that trial court's failure to specifically instruct jury that State was required to prove confinement without consent was not fundamental error, where instructions together as a whole adequately informed jury that vie-tim must not consent to confinement), trans. demied.
Id. In short, I agree with the Davis court that "justice can be best served by analyzing questions involving jury instructions based on the cireumstances of each case to determine whether the defendant received a fair trial rather than summarily concluding that any omission is fundamental error." Id.
I see nothing in the record to suggest that Taylor was denied a fair trial in any way by the omission of an instruction on the elements of robbery. As previously discussed, the evidence overwhelmingly established his guilt, the jury was told of the elements of robbery on two occasions during voir dire and closing, and there was no dispute whatsoever that a robbery took place. Under the cireumstances of this case, I would hold that Taylor has not established fundamental error. - Consequently, he would not have won his direct appeal on this claim had it been raised, and he was therefore not the recipient of *723ineffective assistance of appellate counsel. I would affirm the post-conviction court in all respects.