778 N.E.2d 1276 (Ind. 2002), 45S00-9909-CR-467, Boesch v. State

Docket Nº45S00-9909-CR-467.
Citation778 N.E.2d 1276
Party NameRoger BOESCH, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
Case DateNovember 25, 2002
CourtSupreme Court of Indiana

Page 1276

778 N.E.2d 1276 (Ind. 2002)

Roger BOESCH, Defendant-Appellant,


STATE of Indiana, Plaintiff-Appellee.

No. 45S00-9909-CR-467.

Supreme Court of Indiana

November 25, 2002.

Rehearing Denied May 30, 2003.

Page 1277

[Copyrighted Material Omitted]

Page 1278

J. Richard Kiefer, K. Michael Gaerte, Kiefer & McGoff, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Nandita G. Shepherd, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.


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.

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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

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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

Page 1281

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...

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