Burnside v. State

• Decision Date: 14 December 2006
• Docket Number: No. 71A04-0605-PC-264.,71A04-0605-PC-264.
• Parties: Curtis BURNSIDE, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

858 N.E.2d 232

Curtis BURNSIDE, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 71A04-0605-PC-264.

Court of Appeals of Indiana.

December 14, 2006.

COPYRIGHT MATERIAL OMITTED

Susan K. Carpenter, Public Defender of Indiana, Brian Eisenman, Deputy Public Defender, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Justin R. Roebel, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SHARPNACK, Judge.

Curtis Burnside appeals the post-conviction court's denial of his petition for post-conviction relief. Burnside raises two issues, which we consolidate and restate as whether he was denied the effective assistance of trial and appellate counsel. We reverse and remand.

The relevant facts follow. In the early morning of July 17, 2000, Burnside's sister, Quiyana Burnside ("Quiyana"), and Ernest Williams were riding around in Quiyana's car. Burnside v. State, No. 71A04-0104-CR-152, slip op. at 2, 762 N.E.2d 792 (Ind.Ct.App. Jan.9, 2002), trans. denied. During this car ride, Williams asked Quiyana for some money. Id. When Quiyana refused to give Williams any money, Williams began to hit Quiyana and then stole drugs and money that were hidden in her bra. Id.

Later that same day, Quiyana was driving around with two acquaintances and her brother, Burnside. Id. Burnside was informed that Williams had hit Quiyana and stolen money and drugs from her. Id. Quiyana and her three passengers stopped at a mini-mart that was located about a block from Williams's house. Id. Burnside informed Quiyana that he was going to walk over and talk to Williams. Id. After arriving at Williams's house, Burnside and Williams argued outside of the house. Id. at 2-3. Burnside then removed a handgun from his back left pants pocket and shot Williams four times, resulting in his death. Id. at 3.

The State charged Burnside with murder.¹ At the jury trial, Burnside's defense was that he killed Williams in self defense. Alternatively, Burnside argued that the homicide was done recklessly, not knowingly or intentionally. During the State's cross examination of Burnside, the State asked, over Burnside's objection, if he had a license to carry his handgun. Burnside admitted that he did not have a license, and the trial court instructed the jury that "in the State of Indiana for a person to carry a handgun, a person is required by law to obtain a permit." Transcript at 504. Burnside requested jury instructions on both self defense and reckless homicide, and the trial court instructed the jury regarding both theories. The State objected to the instruction because it intermingled the self defense and reckless homicide theories, but the objection was denied. Burnside did not object to the instruction. The jury found Burnside guilty of murder, and the trial court sentenced him to the Indiana Department of Correction for a term of sixty-five years imprisonment, with ten years suspended and ten years of probation upon his release. Burnside, No. 71A04-0104-CR-152, slip op. at 3, 762 N.E.2d 792.

On direct appeal of his conviction, Burnside argued that the trial court erred when it denied his motion for a mistrial and that his trial counsel was ineffective because she stipulated to the admission of his videotaped statement and referred to the statement during her opening arguments. Id. at 3, 8. We affirmed Burnside's conviction. Id. at 9.

Burnside filed a petition for post-conviction relief alleging that he received ineffective assistance of trial and appellate counsel and that the trial court committed error regarding the admission of evidence. After a hearing, the post-conviction court denied Burnside's petition as follows:

Petitioner argues that the Court's final instructions to the jury were erroneous as a matter of law with respect to self-defense in three ways:

1. Petitioner's first claim is that the instruction impermissibly merges self-defense and reckless homicide. In fact, the instruction first points out that "A person is justified in using reasonable force against another person to protect himself from what he reasonably believes to be the imminent use of unlawful force. However, a person is justified in using deadly force only if he reasonably believes that such force is necessary to prevent serious bodily injury to himself or the commission of a forcible felony." Later the instruction says, "If you conclude from all the evidence that deadly force was used as self-defense, you should next determine from all the evidence whether the State proved beyond a reasonable doubt that this use of deadly force was not justified as self-defense as discussed elsewhere in these instructions." Read as a whole, the instruction adequately informs the jury of when deadly force is justified, and tells the jury that the State has the burden to prove beyond a reasonable doubt that this use of deadly force was not justified as self-defense.

2. Petitioner's second claim—that "the instruction erroneously shifts the burden of proof to the defendant"—is simply not supported by the language of the instruction. Nowhere in the entire instruction does it say that the defendant has to prove, or indeed assert, anything. The language carefully speaks of the jury determining things from the evidence ("if you find"), and what the State has to prove, and whether the State failed to prove something. It never says that the Defendant has to show anything. There is no shifting of the burden of proof here.

3. Petitioner claims that the instruction did not give the complete statement of law as to the requirement for the use of deadly force. The Court's instruction reads:

For a claim of the use of deadly force in self-defense to prevail, the evidence must establish that: 1. The defendant was in a place in which he had a right to be; 2. He did not provoke, instigate, or participate willingly in violence, and 3. He had reasonable fear of death or great bodily harm. Petitioner claims that the Court's instruction is "an incomplete statement of the law," and then quotes I.C. 35-41-3-2(e)(2) which provides that a defendant is not justified in using any force if that defendant "provokes unlawful action by another person with intent to cause bodily injury to the other person". In point of fact, this was not Defendant's theory of the case, nor his theory of self-defense. He never claimed that the victim ever engaged in unlawful action during the confrontation between the Defendant and the victim. Therefore, to have employed the statutory language would not have been a-propos to the evidence nor to Defendant's theory of self defense. Under the Court's instruction, if the evidence showed that the Defendant did not provoke, instigate, or participate in any violence by another person, the condition precedent for invoking self-defense is fully met.

Moreover, it is entirely conceivable that a jury could find that a defendant provoked some action by the victim without the Defendant having a then-present intent to cause bodily injury to the other person. If the "with intent" phrase were in the instruction, the jury could conclude that the defense of self-defense was not available to him, if he did not initially have intent to cause bodily injury to the victim—which Petitioner's added intent phrase would require.

Petitioner further claims that the instruction on reckless homicide is fundamentally deficient. The instruction on recklessness stated, "The term `reckless' means that a person engages in conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct. A person who recklessly kills another human being commits reckless homicide, a Class C felony." This Court believes that this is not fundamentally deficient.

Petitioner's final claim of reversible error is grounded in the introduction of evidence that he did not have a license for the gun he brought to the confrontation, which is a violation of law. Granting that testimony of another uncharged act should not ordinarily be admitted, it is to be noted here that this is not evidence of some other, extrinsic act of which there was otherwise no evidence. It relates to the possession of the handgun that Defendant carried, drew, and used to shoot the victim. Indeed, Defendant did not deny the shooting. He claimed self-defense. Defendant was unsuccessful in urging incompetent trial counsel in his direct appeal. As the court of Appeals pointed out, "To succeed, the petitioner must demonstrate both deficient performance and resulting prejudice ..." Prejudice exists when "there is a reasonable probability that the result of the proceeding would have been different but for defense counsel's inadequate representation." As the Court had pointed out in its summary of the factual background, when Defendant learned that the victim had just hit Defendant's sister and had taken money and drugs from her bra, he went over to the victim's home. He had a gun in his back pocket, and drew it after he and the victim began arguing outside the victim's home. He admitted the shooting.

There is no showing that the lack of a license to possess the gun tipped the balance against the Defendant, nor is there a showing that there is a reasonable probability that the verdict would have been different had this lack of a license not been mentioned. In Bocko v. State, 769 N.E.2d 658 (Ind.App.2002), the trial court had admitted testimony that, as he prepared to go to the police, that defendant threw away some heroin in his possession—which was not included as a charge. The Court held that the admission of the uncharged crime was not error since it completed the story of the Defendant's charged crime (which was not the heroin), and there was no substantial likelihood that the admitted evidence contributed to the jury's verdict. In the present case, the jury knew that the Defendant had just...