ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
J. Richard Kiefer Steve Carter
K. Michael Gaerte Attorney General of
Indiana
Kiefer & McGoff
Indianapolis, Indiana Nandita G. Shepherd
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
ROGER BOESCH )
Defendant-Appellant, )
)
v. ) 45S00-9909-CR-467
)
STATE OF INDIANA )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Richard W. Maroc, Judge
Cause No. 45G01-9807-CF-00144
________________________________________________
Consolidated Direct Appeal and Appeal from Denial of Post-Conviction Relief
November 25, 2002
DICKSON, Justice
The defendant, Roger Boesch, was convicted of the 1998 murder of his
wife, Saundra Boesch, and was sentenced to a term of fifty-two years. He
initiated a direct appeal in this Court and requested remand to the trial
court in order to pursue post-conviction relief pursuant to Davis v. State,
267 Ind. 152, 368 N.E.2d 1149 (1977). We granted the defendant's motion
and suspended consideration of his direct appeal pending the post-
conviction determination. Upon the denial of post-conviction relief, the
defendant now presents his consolidated appeal from the judgments of both
the initial trial court and the post-conviction court, asserting that (1)
the inclusion of sudden heat as an element of voluntary manslaughter in one
jury instruction constitutes fundamental error; and (2) he received
ineffective assistance of his trial counsel. We affirm the trial court and
the post-conviction court.
Voluntary Manslaughter Instruction
In his direct appeal, the defendant claims that the trial court
committed fundamental error by instructing the jury in his murder trial
that before it could find the defendant guilty of the lesser-included
offense of voluntary manslaughter, the State must have proved that the
defendant "did the killing while acting under sudden heat." Trial Record
at 115.[1]
The defendant argues that by so instructing the jury, the court
effectively eliminated his chance of obtaining a voluntary manslaughter
conviction, as the State, pursuing a murder conviction, was clearly
unmotivated to prove sudden heat.
It is well settled in Indiana that sudden heat is not an element of
voluntary manslaughter. Isom v. State, 651 N.E.2d 1151, 1152 (Ind. 1995);
Bane v. State, 587 N.E.2d 97, 100 (Ind. 1992); Palmer v. State, 573 N.E.2d
880 (Ind. 1991); Wilcoxen v. State, 705 N.E.2d 198, 203 (Ind. Ct. App.
1999). Rather, once a defendant presents evidence of sudden heat, the
State bears the burden of disproving its existence beyond a reasonable
doubt. Ind. Code § 35-42-1-3(b); Bane, 587 N.E.2d at 100. An instruction
assigning to the State the burden of affirmatively proving sudden heat is
erroneous as a matter of law, and when properly objected to at trial may
require a new trial on the murder charge. Id. at 100-01.
The defendant concedes that his trial counsel neither objected to the
erroneous instruction nor tendered a proper instruction. As a result, the
defendant may not present this claim on appeal. Ind. Trial Rule 51(C);
Mitchell v. State, 726 N.E.2d 1228, 1235 (Ind. 2000). To avoid procedural
default, the defendant argues that because the issue of sudden heat was at
the heart of his defense, the court committed "fundamental error" by
improperly instructing the jury that sudden heat is an element of voluntary
manslaughter. The "fundamental error" rule is extremely narrow, and
applies only when the error constitutes a blatant violation of basic
principles, the harm or potential for harm is substantial, and the
resulting error denies the defendant fundamental due process. Benson v.
State, 762 N.E.2d 748, 755 (Ind. 2002) (citing Mitchell, 726 N.E.2d at
1236); see also Ford v. State, 704 N.E.2d 457, 461 (Ind. 1998).
When determining whether a defendant suffered a due process violation
based on an incorrect jury instruction, we look not to the erroneous
instruction in isolation, but in the context of all relevant information
given to the jury, including closing argument, Isom, 651 N.E.2d at 1153,
and other instructions, id.; Bane, 587 N.E.2d at 101. There is no
resulting due process violation where all such information, considered as a
whole, does not mislead the jury as to a correct understanding of the law.
Isom, 651 N.E.2d at 1153. For example, in Bane, the jury in a murder trial
was instructed in a manner similar to the present case. At one point the
instructions stated that sudden heat is an element of voluntary
manslaughter and that the State bore the burden of its proof. Bane, 587
N.E.2d at 100. However, at another point the instructions informed the
jury that sudden heat is a mitigating factor that reduces what would
otherwise be murder to manslaughter. Id. This Court found that the
instructions were inartfully drafted and technically erroneous, but did not
constituted fundamental error. Id. at 101. Similarly, in Isom, 651 N.E.2d
1151, although the jury was incorrectly instructed that sudden heat is an
element of voluntary manslaughter, it was also informed that sudden heat
"acts as a mitigator for reducing what would otherwise be murder to
voluntary manslaughter," and was reminded by defense counsel in closing
argument that sudden heat acts as a mitigator. Id. at 1153. This Court
concluded that the challenged sudden heat instruction carried an erroneous
suggestion but did not constitute fundamental error. Id.
Conceding that Isom and Bane are at odds with his position, the
defendant urges us to reconsider our holdings in those cases, or at least
to distinguish them factually from his own. We decline.
It is highly improbable that the jury in this case was misled as to
an accurate legal understanding of sudden heat and its significance.
First, as did the instruction in Bane, the instruction about which the
defendant complains quotes Indiana's voluntary manslaughter statute, which
states that "[t]he existence of sudden heat is a mitigating factor that
reduces what otherwise would be murder to voluntary manslaughter." Trial
Record at 115 (quoting Ind. Code § 35-42-1-3). Second, the instruction
that immediately followed stated that "[i]n order to prove the offense of
Murder, if there is some evidence of 'sudden heat,' then the State bears
the burden in its evidence of negating the existence of sudden heat beyond
a reasonable doubt." Trial Record at 116. Finally, the defendant's
attorney emphasized the point in his closing argument to the jury:
The existence of sudden heat is a mitigating factor, a reducing
factor, that reduces what otherwise would be murder to voluntary
manslaughter. And the instruction goes on that the state must, if
there is evidence of sudden heat, the state must prove to you beyond a
reasonable doubt the nonexistence of sudden heat to avoid a voluntary
manslaughter conviction if you believe it was intentionally or
knowingly done.
So there is a burden on the state . . . . They must, in essence,
tell you there was no sudden heat, and you have to believe that beyond
a reasonable doubt to find him guilty of murder, because if sudden
heat is there and this court's instructions will tell you, you have
got to find – you have got to find voluntary.
Trial Record at 1241-42.
We hold that, although erroneous, the challenged single passage did
not constitute fundamental error. Because no objection was made at trial
and the error was not fundamental, the defendant may not assert this
argument on appeal.
Ineffective Assistance of Counsel
Having considered the issue presented in the defendant's direct
appeal from his conviction, we now turn to his appeal from the denial of
post-conviction relief. The sole ground raised by the defendant in his
petition for post-conviction relief was ineffective assistance of counsel.
P.C.R. Record at 13. Using the two-part test established by the United
States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), the post-conviction court, after a full
evidentiary hearing, found that (1) there was no evidence that "the
performance of trial counsel fell below the norms of prevailing
professional conduct" and (2) "[t]here is no evidence . . . that trial
counsel's handling of the petitioner's case prejudiced the petitioner."
P.C.R. Record at 59.
When reviewing a denial of post-conviction relief, we give no
deference to the post-conviction court's legal conclusions, but to the
extent the decision turns on factual determinations, our review is
deferential, and will result in reversal only when the decision is found to
be clearly erroneous. Ind. Trial Rule 52(A); Stevens v. State, 770 N.E.2d
739, 746 (Ind. 2002). The defendant "must convince this Court that the
evidence as a whole leads unerringly and unmistakably to a decision
opposite that reached by the post-conviction court." Id. at 745.
The defendant supports his claim of ineffective assistance of counsel
by arguing that his trial counsel (1) failed to object to a clearly
erroneous jury instruction, (2) presented inconsistent theories of defense,
and (3) failed to conduct an exhaustive scientific and factual
investigation that may have supported an accident defense, thus rendering
his conviction and sentence unreliable.
a. Failure to Object
The defendant first claims that his trial counsel was ineffective
because he failed both to object to the erroneous voluntary manslaughter
instruction discussed above and to tender a proper instruction in its
place. He acknowledges that this claim was not included in his petition
seeking post-conviction relief. Indiana Post-Conviction Rule 1(8) requires
that all available grounds for relief be raised in a petitioner's original
or properly amended petition. "Issues not raised in the petition may not
be raised for the first time on post-conviction appeal." Allen v. State,
749 N.E.2d 1158, 1171 (Ind. 2001).
The defendant attempts to overcome this result by arguing that the
failure to specify this claim in the petition for post-conviction relief
constitutes fundamental error. The fundamental error doctrine is not
applicable in post-conviction proceedings. Sanders v. State, 765 N.E.2d
591, 592 (Ind. 2002); Canaan v. State, 683 N.E.2d 227, 235 n.6 (Ind. 1997).
b. Inconsistent Theories of Defense
The defendant next claims that his right to counsel was violated
because his trial counsel contradicted the defendant's trial testimony that
he did not intend to kill his wife. The defendant argues that his lawyer
(1) made statements during his closing argument insinuating that the
defendant did intend to kill his wife, and (2) presented a defense of
voluntary manslaughter rather than accident. The defendant argues that
"[t]his inconsistency forced the jury to decide not only whether to believe
the State's version or Boesch's, but also whether they believed Boesch's or
his own lawyer's." Br. of Appellant at 37. The State responds that the
issue of inconsistent theories of defense is waived because it was not
raised in the defendant's petition.
The facts alleged in the petition in support of the defendant's claim
of ineffective assistance of counsel are as follows:
1) trial counsel instructed me to present false testimony over my
objections; 2) trial counsel failed to listen to my recitation of
events leading to the death of my wife and to recognize the potential
"accident" defense; 3) trial counsel conceded my guilt by admitting
in opening statement that I killed my wife (this was done without my
consent); 4) [trial counsel] insisted upon a defense of "voluntary
manslaughter" (i.e. "sudden heat") over my objections; 5) trial
counsel insisted, over my objections, that the only issue was whether
I acted in "sudden heat" and would not even consider my claim that I
did not intend to kill my wife . . . .
P.C.R. Record at 13-14. While "inconsistent defenses" is not explicitly
asserted in the petition, we find that the defendant's appellate claims on
this point are within the issues raised in the his petition.
The defendant testified that while swimming in their pool, his wife
told him for the first time that she was having an affair with his brother
and that she wanted a divorce. The defendant admitted that an argument and
physical struggle ensued, during which he grabbed his wife with both hands
and pulled her about as hard as he could into the pool by her ankle, pushed
her under the water at least twice, and grabbed her around the neck and
squeezed. He also testified that they were hollering, shoving, wrestling,
and screaming, and that at some point he realized things had gotten "out of
hand" and that he should not be doing what he was doing. Trial Record at
1101-10. The defendant stated that he had never been so mad, Trial Record
at 1150, and that he pushed her under the water because he did not want to
hear what she was saying. Trial Record at 1106.
The defendant contends that he received ineffective assistance when
his counsel asserted in his closing argument that the defendant did, in
fact, intend to kill his wife, saying: "His intention was to punish. His
intention was to inflict pain. His intention was to repay her . . ." Br.
of Appellant at 33 (quoting Trial Record at 1245). This quoted segment of
defense counsel's closing statement, however, is incomplete and misleading
in its failure to disclose material facts. What counsel actually said was:
"I don't think that that was his intention; death. His intention was to
inflict pain. His intention was to repay her for the pain he [sic] just
inflicted on her [sic], but it wasn't an intent to kill which is something
you need to have a murder." Trial Record at 1245-46 (emphasis added). He
repeated this assertion just a few statements later: "He didn't think he
killed her, and it never was his intent to kill her. . . . He did squeeze
her neck, but he did it in sudden rage." Trial Record at 1251-52.
The jury was instructed that the defendant was charged with murder by
"knowingly or intentionally" killing his wife. Trial Record at 110. The
defendant argues that his trial testimony insisted that "he did not have
any intent to kill Saundra." Br. of Appellant at 33. His testimony does
not dispute, however, that the killing may have occurred "knowingly." A
person acts knowingly if "when he engages in the conduct, he is aware of a
high probability that he is doing so." Ind. Code § 35-41-2-2(b). The
defense counsel's closing statement repeatedly asserted that the defendant
did not intend to kill his wife. Trial Record at 1245-46, 1251-52. But,
despite the claim of no intentional killing, the fact that the defendant
had forcefully choked his wife remained as strong evidence of a knowing
killing. To address this evidence, the defendant's attorney urged the jury
to consider the alternative lesser offenses of reckless homicide,
involuntary manslaughter, and voluntary manslaughter, strongly arguing for
the presence of sudden heat. Considered in its totality, counsel's
argument did not contradict his client.
The defendant offers Sherwood v. State, 717 N.E.2d 131 (Ind. 1999) in
support of his argument that discrepancies in defense theories between a
defendant and his or her counsel constitute ineffective assistance. The
defendant in that case was denied his request to proceed pro se, and was
instead forced to submit to a hybrid representation scheme whereby he and
an appointed attorney presented conflicting defenses. This Court there
held that forced representation by counsel upon a defendant who wished to
conduct his own defense violated his Sixth Amendment right to self-
representation. Id. at 136. But this issue is not presented in the
present case.
In light of the defendant's testimony, it was neither unreasonable
nor inconsistent for counsel to present a voluntary manslaughter defense as
an alternative defense strategy. We reject the defendant's claims that his
trial counsel's closing statement denied or contradicted his trial
testimony that he did not intentionally kill his wife. This conduct of
trial counsel was not deficient.
c. Failure to Investigate
The defendant finally claims that his trial counsel was ineffective
for failing to properly investigate (1) scientific material that may have
supported an accident defense, and (2) the weaknesses in the testimony of
Don Weaver, a critical State witness. The State claims, and the post-
conviction court concluded, that these issues are waived because they were
not raised in the defendant's petition for post-conviction relief. P.C.R.
Record at 59. To the contrary, we find that the defendant's claim of
failure to investigate the accident defense is sufficiently covered by the
allegation in the defendant's petition that, "[t]rial counsel failed to
listen to my recitation of events leading to the death of my wife and to
recognize the potential "accident" defense." P.C.R. Record at 13-14
(emphasis added). This asserted claim encompasses the defendant's argument
that, had his counsel properly investigated the available scientific
material, he would not have dismissed an accident defense in favor of
sudden heat. We decline to find waiver as to this claim.
The defendant has maintained that his wife's death was the result of
an accident. He believes that she probably hit her head when they were
fighting, causing her to pass out and drown after the defendant left the
pool. Defense counsel reviewed photographs and the victim's autopsy
reports with a pathologist and was informed that: the victim did have a
gash on the back of her head, but that it was not the cause of her death;
the victim had petechiae hemorrhages in her eyes indicating strangulation;
there was no water in the victim's lungs, indicating that she did not
drown; there were focal hemorrhages on the victim's neck, or fingerprints
left by someone applying pressure over time, and; the cause of death was
asphyxiation (lack of oxygen). After this discussion with the pathologist,
defense counsel advised the defendant that he did not believe the evidence
would support an accident defense.
In the post-conviction proceedings, however, the defendant presented
testimony of three physicians, including the doctor who performed his
wife's autopsy, who stated that they believed that drowning could have been
his wife's cause of death, notwithstanding the absence of water in her
lungs. The defendant also quotes a medical treatise indicating that as
many as 10% – 20% of all drowning victims may never inhale water into their
lungs. Br. of Appellant at 40. The defendant argues that:
Because he failed to conduct necessary medical research and failed to
seek expert witness support for an accidental drowning with no water
in the lungs, [defense counsel] assumed incorrectly that Saundra's
death could not have been an accident, rejected his own client's
version of the facts and testimony at trial, and agued to the jury
that [the defendant] was guilty of manslaughter.
Br. of Appellant at 42-43.
When deciding a claim of ineffective assistance of counsel for
failure to investigate, we apply a great deal of deference to counsel's
judgments. Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052,
2066, 80 L.Ed. 674, 695 (1984). In Strickland, the United States Supreme
Court observed that:
[S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional
judgments support the limitation on investigation. In other words,
counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.
Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066, 80 L.Ed. at 695.
We see no evidence that defense counsel's investigation fell below
objective standards of reasonableness. He testified at the post-conviction
hearing that he did not contest the defendant's theory of his wife's death
when relayed to him by the defendant. It was only after counsel studied
the autopsy reports and photographs and consulted with a pathologist that
he determined an accidental death defense appeared totally unrealistic
within the facts of the case.
Furthermore, the defendant has made no showing that the outcome of
his case would likely have been different had counsel further investigated
scientific data regarding "dry drowning." He admits in his brief that "it
is unknown what evidence existed, but pointed in other directions." Br. of
Appellant at 36. He also admits that only between 10% and 20% of drowning
victims do not inhale water into their lungs, which translates to a 20%
chance, at best, that the victim's cause of death was accidental drowning.
When this low statistical probability is combined with the other medical
evidence and the testimony of the witness who claims to have seen the
defendant holding the victim under the water with his hands around her
neck, we are not persuaded that there is a reasonable probability that the
accident defense now urged by the defendant would have produced a result
more favorable to him.
As for the defendant's claim that his attorney failed properly to
investigate the proposed testimony of Don Weaver, a State witness, we agree
with the State that this issue was not raised in the defendant's petition
for post-conviction relief. The defendant concedes this but claims that,
because the issue was addressed in detail at the post-conviction hearing
and was the subject of extensive cross examination, it is not subject to
waiver.
The merits of this issue, however, were not tried with the consent of
the State. Asserting waiver, the State repeatedly objected to testimony
regarding: deficiencies in investigation, (P.C.R. Record at 90); failure to
develop impeachment material for Don Weaver, (P.C.R. Record at 169); and
any testimony not concerning sudden heat. (P.C.R. Record at 298). The
post-conviction court ruled that it would allow the witnesses to continue,
but would show a continuing objection by the State and would base its
ruling only on those grounds raised in the petition. P.C.R. Record at 301.
Because the issue was not included in the defendant's petition for post-
conviction relief, it may not be raised in this appeal.
The defendant has failed to establish that the performance of his
trial counsel fell below the norms of prevailing professional conduct. We
decline to find that he was deprived of his right to counsel.
Conclusion
We affirm the judgment of the trial court and the judgment of the
post-conviction court denying the defendant's petition for post-conviction
relief.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] To avoid confusion we will refer to the record on direct appeal as
"Trial Record" and the record from the post-conviction hearing as "P.C.R.
Record."