Baxter v. State Of Ind.

• Decision Date: 13 July 2010
• Docket Number: Cause No. 49G01-0311-PC-197036,No. 49A02-0908-PC-724,49A02-0908-PC-724
• Parties: WILLIAM D. BAXTER, Appellant, v. STATE OF INDIANA, Appellee.
• Court: Indiana Appellate Court

WILLIAM D. BAXTER, Appellant,

v.STATE OF INDIANA, Appellee.

No. 49A02-0908-PC-724

Cause No. 49G01-0311-PC-197036

Court Of Appeals Of Indiana

July 13, 2010

ATTORNEYS FOR APPELLANT: SUSAN K. CARPENTER Public Defender of Indiana

ANNE-MARIE ALWARD Special Assistant to the State Public Defender Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana

MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Kurt M. Eisgruber, Judge

MEMORANDUM DECISION-NOT FOR PUBLICATION

MAY, Judge William D. Baxter appeals the denial of his petition for post-conviction relief. As he demonstrated his trial and appellate counsel were ineffective, we reverse.

FACTS AND PROCEDURAL HISTORY

On Baxter's direct appeal, we set out the facts most favorable to the conviction:

On November 11, 2003, Baxter was living with his girlfriend, Kimberly Bray, in Indianapolis. Baxter was not employed, and he and Bray spent most of their days shoplifting so that they could sell merchandise to fund their crack cocaine habits. Sometime on November 11, Baxter informed Michael Rainey, one of the individuals who was staying with them, that he was expecting a telephone call.

At some point, Marcus Williams an acquaintance of Bray and Baxter's telephoned the residence, stating that he needed some gasoline for his vehicle. Baxter's nephew, Taryll Miller, waited for Baxter and Bray in his car, so they could drive out to Claude and Annie's Restaurant and Bar, where Williams was playing pool, in order to give him a can of gasoline. Williams and Miller were acquaintances, and while the two did some "business" together, Miller grew to dislike Williams to the point that he wanted to see him dead. Baxter disliked Williams as well. Miller drove the three to the restaurant, and after noticing Williams and his girlfriend Carlette Moody inside, Miller parked the vehicle. Baxter left the car, and Miller then ordered Bray to drive to a nearby vacant lot.

At some point, Williams and Moody left the restaurant, and they noticed Baxter walking toward them with a gas can. Baxter then entered the backseat of their vehicle, and they drove to the lot and parked near the other vehicle where Bray and Miller were waiting. Shortly thereafter, Baxter fired three gunshots and fled to the car, where Miller and Bray were waiting. Baxter jumped into the front passenger seat of Miller's car, told Bray to "go" and stated "I shot him once and her twice."

The three then drove back to Bray's, and Baxter ordered her to dispose of his clothing. Bray complied and placed the clothes in a dumpster at a nearby liquor store. When the police found Williams and Moody at the scene of the shooting, Moody told emergency personnel that Baxter had shot them. The following morning, Baxter was arrested. In the end, Williams died from a gunshot wound to the head, and Moody sustained two gunshot wounds to her head but survived.

Baxter v. State, No. 49A02-0504-CR-296, slip op. at 2-3 (Ind. Ct. App. Mar. 15, 2006) (internal citations omitted), trans. denied.

The State charged Baxter with murder, a felony;¹ attempted murder, a Class A felony;² and carrying a handgun without a license, a Class A misdemeanor.³ Before the presentation of evidence, the court gave the jury the following preliminary instruction:

INSTRUCTION NO. 7

The crime of Attempt Murder is defined as follows:

"A person attempts to commit a murder when, acting with the conscious purpose of killing another person, he engages in conduct that constitutes a substantial step toward killing that person."

To convict the defendant, William Baxter, of Attempt Murder, the State must prove each of the following elements:

That the defendant, William Baxter, on or about November 11, 2003,

1. did attempt to commit Murder,

2. which is to intentionally kill another human being, that is: Carlette Moody, by engaging in conduct, that is: firing a deadly weapon, that is: a handgun, at and against the person of Carlette Moody,

3. with the specific intent to kill Carlette Moody, which conduct constituted a substantial step toward the commission of said crime of Murder.

If the State fails to prove each of these elements beyond a reasonable doubt, you must find the Defendant, William Baxter, not guilty of Attempt Murder, a Class A Felony as charged in Count II of the Information.

If the State does prove each of these elements beyond a reasonable doubt, you should find the Defendant, William Baxter, guilty of Attempt Murder, a Class A Felony as charged in Count II of the Information.

(App. at 81-82.)⁴

Before final arguments, the State tendered an instruction on accomplice liability. Baxter's counsel objected on the ground the State had charged Baxter as a principal, not as an accomplice, and the State should not be permitted to change its theory so late in the trial. The trial court overruled the objection and gave the following instructions:

INSTRUCTION NO. 23(E)

A person is responsible for the actions of another person when, either before or during the commission of a crime, he knowingly aids, induces, or causes the other person to commit a crime even if the other person:

1. has not been prosecuted for the offense

2. has not been convicted of the offense; or a different offense

3. has been acquitted of the offense.

To aid is to knowingly support, help, or assist in the commission of a crime.

In order to be held responsible for the actions of another, he need only have knowledge that the [sic] is helping in the commission of the charged crime. He does not have to personally participate in the crime nor does he have to be present when the crime is committed.

Proof of the defendant's failure to oppose the commission of a crime, companionship with the person committing the offense, and conduct before and after the offense may be considered in determining whether aiding may be inferred.

Mere presence at the scene of an alleged crime or failure to oppose the crime is not, in of itself, aiding, inducing or causing the commission of a crime. Neither is negative acquiescence sufficient standing alone. There must be some conduct of an affirmative nature on the part of a defendant in order for that defendant to be criminally liable as an accessory. It must be proven beyond a reasonable doubt that a defendant had knowledge of and participated in the commission of the crime.

INSTRUCTION NO. 23(F)

The intent to kill can be found from the acts, declarations, and conduct of the defendant at or just immediately before the commission of the offense, from the character of the weapon used, and from the part of the body on which the wound was inflicted.

The law does not require a direct statement of intent by the defendant to prove the intent to commit a particular crime.

(Id. at 108-10.)

The jury found Baxter guilty of murder and attempted murder. Following a sentencing hearing, the trial court sentenced Baxter to consecutive sentences of fifty-five years for murder and thirty years for attempted murder.

Baxter appealed, questioning whether "the accomplice instruction was error is [sic] because the State charged him as a principal rather than as an accomplice," Baxter, No. 49A02-0504-CR-296, slip op. at 5, and whether the evidence was sufficient to sustain his convictions. We affirmed Baxter's convictions, finding that even if the jury chose to believe Baxter's testimony that Miller was the shooter, "the evidence showed that Baxter was present at the scene, was in companionship with Miller before and after the shooting, and there was evidence showing that Baxter affirmatively aided Miller in the crimes." Id. at 5-6.

Baxter filed a petition for post-conviction relief, which was later amended to assert he was denied effective assistance of counsel when his "trial counsel failed to object to the court's erroneous instructions on accomplice liability for attempt murder." He claimed the instructions did not indicate Baxter had to have specific intent that Moodydie when he aided Miller's attempted murder of Moody, and his appellate counsel "failed to challenge the erroneous instructions on accomplice liability for attempt murder as fundamental error." (P-C App. at 44.)

The post-conviction court held a hearing on Baxter's petition on March 24, 2009. Baxter's trial counsel testified she did not object to the mens rea language in the instruction on accomplice liability because she "just wasn't thinking about the attempted murder and overlooked that part of that instruction." (P-C Tr. at 6.) Baxter's appellate counsel testified she "raised the issue of the accomplice liability instruction based on the objection [at trial], but [she] could have also raised it in the alternative as fundamental error." (Id. at 9.) On June 17, 2009, the post-conviction court entered its findings of fact and conclusions of law, denying Baxter's petition.

DISCUSSION AND DECISION

A post-conviction petitioner bears the burden of establishing his claims by a preponderance of the evidence. Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied. An appeal from the denial of post-conviction relief is an appeal from a negative judgment. Id. To prevail, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id. In the post-conviction setting, conclusions of law receive no deference on appeal. Id. As to factual matters, we examine only the probative evidence and reasonable inferences that support the post-conviction court's determination and do not reweigh the evidence or judge the credibility of the witnesses. Id.

To establish a post-conviction claim alleging a violation of the Sixth Amendment right to effective assistance of counsel, a defendant must establish before the post-conviction court the two components set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, a defendant must

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