Burris v. State

• Decision Date: 13 April 1992
• Docket Number: No. 49A02-9201-PC-3,49A02-9201-PC-3
• Parties: Anthony S. BURRIS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. 1 .
• Court: Indiana Appellate Court

Page 576

590 N.E.2d 576

Anthony S. BURRIS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 49A02-9201-PC-3 ¹.

Court of Appeals of Indiana,

First District.

April 13, 1992.

Transfer Denied June 4, 1992.

John Pinnow, Indianapolis, for appellant-petitioner.

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

ROBERTSON, Judge.

Anthony S. Burris appeals from the denial of his petition for post-conviction relief in which he alleged the ineffectiveness of trial and appellate counsel and fundamental error. ²

We affirm.

Burris' allegations of error each concern the "sudden heat" aspect of the voluntary manslaughter instruction which was given at his trial. Burris maintains that trial counsel was ineffective because of counsel's failure to tender a proper instruction or to object to the voluntary manslaughter instruction which was given, which neither charged the jury that the burden of negating sudden heat beyond a reasonable doubt was upon the State nor contained a definition of sudden heat. ³ Burris also contends trial counsel's performance was rendered ineffective by the trial court's actions when, in an ex parte communication and without Burris' knowledge, the trial judge declined to define sudden heat, informing the jurors instead that sudden heat was "a determination for the jury to make."

The post-conviction court concluded that the ineffectiveness of trial counsel was an issue which could have been raised in Burris' direct appeal and is now waived. As a general rule, ineffective assistance of trial counsel is an issue known and available at the time of the direct appeal. Propes v. State (1990), Ind., 550 N.E.2d 755; Stewart v. State (1991), Ind.App., 567 N.E.2d 171, 173, trans. denied. If trial counsel and appellate counsel are different, as they are here, appellate counsel has the first opportunity to present the issue, and failure to do so will generally be held a waiver of the issue. Id. ⁴

To avoid the doctrine of waiver, Burris alleges that appellate counsel was ineffective in that he failed to raise ineffective assistance of counsel at trial, did not argue that the deficiencies in the voluntary manslaughter instruction constituted fundamental error, and did not assert fundamental error arising as a consequence of the trial court's ex parte communication. The State responds that appellate counsel cannot be faulted for failing to raise meritless issues and argues that the evidence did not warrant the giving of a voluntary manslaughter instruction in the first instance; hence, any error associated with the content of the instruction is harmless beyond a reasonable doubt. As for the ex parte communication, the State maintains that the trial court's response was effectively a denial; therefore, the State sufficiently rebutted the presumption of prejudice.

The benchmark for judging any claim of ineffectiveness must be whether counsel's performance so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674. The performance inquiry asks whether counsel's assistance was reasonable considering all the circumstances. Id. at 689, 104 S.Ct. at 2065.

Analysis of the claim also involves a prejudice component: even if a defendant shows that particular errors of counsel were unreasonable, if the errors had no adverse effect upon the defense, they do not warrant reversal. Id. at 694, 104 S.Ct. at 2068. The court making the actual prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the error. Id. at 697, 104 S.Ct. at 2069. ⁵ In making this determination, a court must consider the totality of the evidence before the fact-finder. Id. at 696, 104 S.Ct. at 2069. With this standard in mind, we consider appellate counsel's decision not to raise the claim of ineffectiveness of trial counsel. As a general rule, appellate counsel need not raise on appeal an issue which appears unavailing. Schiro v. State (1989), Ind., 533 N.E.2d 1201, 1207, cert. denied, 493 U.S. 910, 110 S.Ct. 268, 107 L.Ed.2d 218.

The refusal of an instruction which explains that the State must negate the presence of sudden heat beyond a reasonable doubt is reversible error, necessitating a new trial, when the jury is presented with the evidentiary predicate for the conclusion that a criminal defendant is guilty of voluntary manslaughter and not murder. Harrington v. State (1987), Ind., 516 N.E.2d 65, 66; Holland v. State (1983), Ind., 454 N.E.2d 409, 411. Accord Palmer v. State (1990), Ind.App., 553 N.E.2d 1256, summarily affirmed on rehearing, (1991), Ind., 573 N.E.2d 880. Where sudden heat as a mitigating factor is a primary theory of the defense, the failure to object to an instruction which misstates the State's burden of proof has been held to be per se deficient performance. Morrison v. State, (1992), Ind.App., 588 N.E.2d 527, 531 (citing Palmer, 573 N.E.2d 880).

"The defendant strictly speaking, bears no burden with respect to 'sudden heat'; however, he bears the risk of not being entitled to an instruction on 'sudden heat' if there is no evidence in the case to put the issue of sudden heat in question. Thus, in one sense, he bears the 'burden' of placing the issue in question where the state's evidence has not done so."

Wolfe v. State (1981), Ind., 426 N.E.2d 647, 651 (quoting unofficial commentary following Ind.Code 35-42-1-3).

The evidence, as stated by the Indiana Supreme Court on direct appeal,

revealed that the decedent, unarmed, drove to Defendant's house upon learning of an altercation, which had occurred earlier that day between Defendant and the decedent's fifteen year old niece, who had been Defendant's girlfriend.

According to witnesses, the two men argued quite loudly. Defendant stood next to the automobile in which the decedent remained, shot him at close range and then entered his house. The decedent attempted to leave but his vehicle collided with another automobile, whereupon Defendant exited his house and removed him from the car. He left the decedent by the car, signaled somebody in a passing automobile which fit the description of his brother's automobile, and departed.

Burris v. State (1983), Ind., 444 N.E.2d 1187, 1189.

Burris' defense was "sort of a combination of defense of accident and self defense." He testified that the decedent came to his home in a rage, apparently upset over Burris' treatment of the decedent's niece over the tire-slashing incident which, according to Burris, occurred a couple of weeks earlier. Burris testified that he no longer was upset about the incident but wanted his tires replaced. According to Burris, the decedent burst into Burris' home with a gun, they fought over the gun in the doorway and it accidentally discharged into the decedent. The decedent then left Burris' residence without Burris knowing the decedent had been shot and returned to his car. Burris observed the car move slowly across the street and into a parked vehicle. He removed the decedent from the car. Coincidentally, Burris' brother arrived and Burris left with his brother in fear over the shooting.

Burris' account of the shooting, which fails to put the question of sudden heat in issue, makes this case factually indistinguishable from Underwood v. State (1989), Ind., 535 N.E.2d 118. There, as here, the evidence established an argument shortly before the killing between the decedent and the defendant over the mistreatment of a relative and an explanation of the shooting by the defendant as accidental. In that case, the Indiana Supreme Court found no error in the failure of the trial court to instruct the jury on the lesser included offense of voluntary manslaughter because "the evidence which would be necessary to justify the jury in reducing the murder charge to a voluntary manslaughter charge was not presented." 535 N.E.2d at 121.

Indiana precedent, in addition to Underwood, establishes that anger, evidenced by words alone and without provocation from the victim, is not the kind of "appreciable evidence of sudden heat" which justifies the giving of an instruction on voluntary manslaughter. Cf. e.g. Matheney v. State (1992), Ind., 583 N.E.2d 1202 (evidence defendant angry and made growling noises at time of death without evidence victim provoked defendant by words or actions insufficient to justify voluntary manslaughter instruction); Jewell v State (1989), Ind., 539 N.E.2d 959 (defendent testified that he didn't argue or become angry but even if jury found he did, not evidence of such intense passion that it might be presumed to have obscured his reason); Fowler v. State (1985), Ind., 483 N.E.2d 739 (defendant confessed he shot decedent because of argument over hay transaction). Cf. also Sears v. State (1986), Ind., 494 N.E.2d 1286 (evidence did not require voluntary manslaughter verdict where decedent, who refused to leave defendant's residence, swore at defendant, fought with defendant's boyfriend, and made threat to kill defendant one year before homicide).

The State's evidence which established only that the decedent had loud words with Burris over Burris' treatment of his niece and that Burris was angry over vandalism to his car which had been committed by someone other than the decedent is insufficient of itself to warrant an instruction on voluntary manslaughter; hence, the burden rested with Burris to produce some "appreciable evidence" of sudden heat. Burris' version of the events excludes the possibility that he acted under sudden heat. Where there is no evidence of sudden heat, an incorrect instruction on voluntary manslaughter is not reversible error. See Hensley v. State (1986), Ind., 499 N.E.2d 1125, 1127. Appellate counsel therefore did not act unreasonably...