Anderson v. State
| Citation | 565 N.E.2d 336 |
| Decision Date | 23 January 1991 |
| Docket Number | No. 45S00-8802-169,45S00-8802-169 |
| Parties | Robert ANDERSON, Appellant, v. STATE of Indiana, Appellee. |
| Court | Supreme Court of Indiana |
Nathaniel Ruff, Appellate Public Defender, Crown Point, for appellant.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-Appellant Robert Anderson was convicted of Murder after a jury trial and was sentenced to fifty (50) years imprisonment. The only issue raised in this direct appeal from a denial of his belated Motion to Correct Errors concerns Anderson's claim of ineffective assistance of trial counsel.
The evidence most favorable to the verdict reveals that on the night of December 6, 1986, the victim, Michael Shaifer, and his friend, Jessie Dunn, were walking along 24th Avenue in Gary after they left a bar called Terrell's. A man whom Dunn recognized to be Anderson walked up to Dunn and Shaifer from behind. Anderson then held a gun to Shaifer's back and pushed him down the street. After Shaifer attempted to break free, Anderson hit Shaifer twice on the head with the gun and knocked him to the ground and then said, "You must want to die." Anderson then grabbed Shaifer's arm and pulled him up off the ground. At this point, Shaifer broke free, backed up about three steps, turned around and started down the street. Anderson yelled at Shaifer to stop and then shot him in the back from a distance of five or six feet. Dunn saw Shaifer run away and saw Anderson chase after him. Shaifer died as a result of the gunshot wound.
Anderson complains that his trial counsel was ineffective because he failed to tender an instruction on voluntary manslaughter and because he did not advise Anderson to testify in his own behalf. Anderson testified at the hearing on his belated Motion to Correct Errors that Shaifer was the man who recently robbed a Shell station while Anderson was working there. Recognizing Shaifer on the night of the shooting, Anderson stated that he held Shaifer at gunpoint in order to take him back to the Shell station to call police. According to Anderson, they got into a scuffle, Shaifer started to run away and Anderson shot in Shaifer's direction, without trying to kill him, in order to make him stop. Anderson further testified that he related this story to his attorney but did not want to testify because he had a prior conviction for voluntary manslaughter, reduced from murder pursuant to a plea agreement, and he did not want this information revealed to the jury. Anderson now argues, however, that if he had testified, he could have presented enough evidence to support a jury instruction on "sudden heat" so that it, the jury, could consider convicting him of voluntary manslaughter instead of murder. Anderson's trial attorney testified that he did discuss with Anderson the "pros and cons" of having him testify and that Anderson made the decision not to testify. In addition, the record shows that Anderson's attorney tendered an instruction on sudden heat, which was refused, and that he had a discussion with the trial judge concerning a voluntary manslaughter instruction, but the judge found there was insufficient evidence to support such an instruction.
When reviewing claims of ineffective assistance of counsel, judicial scrutiny of an attorney's performance is highly deferential, and counsel's performance will be presumed to fall within the range of reasonably professional assistance. Strickland v. Washington (1984), 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674, 694-95; Lopez v. State (1988), Ind., 527 N.E.2d 1119, 1129. To prevail on this claim, Anderson...
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Whitener v. State
...been called to testify. The determination of whether or not a defendant should testify is a matter of trial strategy. Anderson v. State, 565 N.E.2d 336, 338 (Ind.1991). Counsel's decision to have defendant testify was not unreasonable and cannot satisfy the performance prong of the test. Th......