Askew v. State

• Court: Indiana Supreme Court
• Writing for the Court: GIVAN
• Citation: Askew v. State, 500 N.E.2d 1219 (Ind. 1986)
• Decision Date: 12 December 1986
• Docket Number: No. 1084S414,1084S414
• Parties: Norman ASKEW, Appellant, v. STATE of Indiana, Appellee.

Page 1219

500 N.E.2d 1219

Norman ASKEW, Appellant, v. STATE of Indiana, Appellee.

No. 1084S414.

Supreme Court of Indiana.

Dec. 12, 1986.

Rehearing Denied Feb. 10, 1987.

Susan K. Carpenter, Public Defender, Vickie Yaser, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

A jury trial resulted in a conviction of Murder. Appellant was sentenced to forty (40) years imprisonment. His conviction was affirmed by this Court. Askew v. State (1982), Ind., 439 N.E.2d 1350. In August of 1983, appellant filed a petition for post-conviction relief, which after an evidentiary hearing was denied by the trial court.

In his Petition for Post-Conviction Relief, appellant contends he was denied effective assistance of counsel. The State points out that appellant did not raise this question on direct appeal. See Askew, supra. However, the State also points out that the same counsel represented appellant at trial and in the appeal; therefore, it is unreasonable to believe that counsel would have raised the question of his own competency in the appeal. We therefore will address ourselves to the merits of this contention. See Majors v. State (1982), Ind., 441 N.E.2d 1375.

During the trial, counsel tendered an instruction on voluntary manslaughter which was refused by the trial court on the grounds that there was no evidence to support such an included offense charge. Appellant now claims the fact that there was no evidence to support a charge of voluntary manslaughter is an indication of incompetency of counsel. It is appellant's position that counsel should have introduced evidence of his subjective fear of the decedent and evidence of sudden heat which would have reduced the homicide charge to voluntary manslaughter. It is appellant's position that this does not reflect poor strategy on the part of trial counsel, but reflects a total failure to effectuate the strategy he had chosen as demonstrated by his tendered instruction on voluntary manslaughter.

Under the facts of this case, trial counsel would have been hard pressed to establish facts which would justify the instruction on voluntary manslaughter. The facts show that appellant sought out the decedent, drove his car to the curb of the sidewalk on which the decedent was walking, accosted him in broad daylight and with witnesses watching fired a shotgun at close range. As the decedent attempted to flee, appellant fired again, killing the decedent. Appellant then left the scene at high speed.

There is absolutely nothing from the evidence in this case upon which trial counsel could conceivably have based a factual defense of self-defense or sudden heat. The trial judge was correct in refusing the instruction on voluntary manslaughter and trial counsel was powerless to establish any evidence which would justify such an instruction.

In order to reverse a case for ineffective representation, we must find: (1) that counsel's performance was...