Campbell v. State

• Decision Date: 30 October 2014
• Docket Number: No. 13S05–1410–PC–682.,13S05–1410–PC–682.
• Citation: 19 N.E.3d 271
• Parties: Wayne A. CAMPBELL, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
• Court: Indiana Supreme Court

19 N.E.3d 271

Wayne A. CAMPBELL, Appellant (Petitioner below)

v.STATE of Indiana, Appellee (Respondent below).

No. 13S05–1410–PC–682.

Supreme Court of Indiana.

Oct. 30, 2014.

Wayne A. Campbell, Michigan City, IN, Appellant pro se.

Justin F. Roebel, Deputy Attorney General, Indianapolis, IN, Gregory F. Zoeller, Attorney General of Indiana, Attorneys for Appellee.

On Petition To Transfer from the Indiana Court of Appeals, No. 13A05–1304–PC–201

RUCKER

, Justice.

Defendant was convicted following a jury trial during which the jury was given a supplemental jury instruction on the definition of “intentionally” after deliberations had begun. Some years later, defendant petitioned for post-conviction relief alleging ineffective assistance of trial counsel, in part, for counsel's failure to object to the instruction. The post-conviction court denied relief. And finding no error we affirm.

Facts and Procedural History

A detailed recitation of the facts is set forth in two published opinions from our Court of Appeals as referenced below. However, a more abbreviated version suffices for our purposes and is as follows. On November 7, 2001 a long-simmering contentious relationship between neighbors, arising out of a property easement dispute, resulted in a physical altercation during which Wayne Campbell entered the home of Jean and Alva Kincaid beating and seriously injuring both. After a standoff with police Campbell was arrested. In 2003, following a jury trial Campbell was found guilty of two counts of attempted murder, burglary resulting in serious bodily injury as a Class A felony, aggravated battery as a Class B felony, and battery as a Class C felony.¹ Campbell appealed raising several claims of error including the propriety of his ninety-year sentence. On Indiana double jeopardy grounds the Court of Appeals remanded the case to the trial court with instructions that Campbell's conviction for Class A felony burglary resulting in bodily injury be reduced to a Class B felony. In all other respects the Court of Appeals affirmed Campbell's convictions and sentence. See Campbell v. State, 820 N.E.2d 711 (Ind.Ct.App.2005)

, trans. granted, 831 N.E.2d 743 (Table) (Ind.2005).² Thereafter Campbell filed a pro se petition for post-conviction relief which was amended several times. Among other claims Campbell contended trial counsel rendered ineffective assistance for (i) engaging in improper voir dire examination during jury selection, and (ii) failing to object to a jury instruction regarding the definition of “intentionally.” The post-conviction court denied relief. On review Campbell challenged the post-conviction court's judgment concerning the foregoing claims. The Court of Appeals rejected both challenges but acknowledged “some tension” in the case authority concerning the correct statement of the law with respect to the definition of intentionally. See

Campbell v. State, 3 N.E.3d 1034, 1041 (Ind.Ct.App.2014). Campbell seeks transfer which we now grant to address his jury instruction claim. See Ind. Appellate Rule 58(A). In all other respects we summarily affirm the opinion of the Court of Appeals. Additional facts are set forth below as necessary.

Standard of Review for Post–Conviction Proceedings

The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004)

(citations omitted). When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Id. To prevail on appeal from the denial of post-conviction relief, a petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind.1993). Further, the post-conviction court in this case made findings of fact and conclusions of law in accordance with Indiana Post–Conviction Rule 1(6). Although we do not defer to the post-conviction court's legal conclusions, “[a] post-conviction court's findings and judgment will be reversed only upon a showing of clear error—that which leaves us with a definite and firm conviction that a mistake has been made.” Ben–Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) (internal quotation omitted).

Standard of Review for Ineffective Assistance of Counsel

When evaluating an ineffective assistance of counsel claim, we apply the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

. See

Helton v. State, 907 N.E.2d 1020, 1023 (Ind.2009). To satisfy the first prong, “the defendant must show deficient performance: representation that fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” McCary v. State, 761 N.E.2d 389, 392 (Ind.2002) (citing Strickland, 466 U.S. at 687–88, 104 S.Ct. 2052 ). To satisfy the second prong, “the defendant must show prejudice: a reasonable probability (i.e. a probability sufficient to undermine confidence in the outcome) that, but for counsel's errors, the result of the proceeding would have been different.” Id. (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052 ).

Discussion

Campbell complains about a supplemental instruction the trial court gave the jury after they began deliberating. The essential facts are these. At the conclusion of trial, the jury received final instructions from the trial court and retired to deliberate. About two hours into deliberations the jury indicated to the bailiff that they might be able to reach a verdict on three of the counts, but “want to know on the other two if it can be a hung jury.” Tr. at 994. By agreement of the parties, the trial court responded that it would “instruct the Bailiff to inform the jury that the answer to their question is yes.” Id. The jury had also asked the bailiff a follow-up question, namely: “they want to know the definition of intent.” Id. Trial counsel initially requested that the statutory definition of “intentionally” be read to the jury. Id. Expressing skepticism on whether the court could “give additional jury instructions after the jury has received the case,” the State requested that Pattern Jury Instruction 9.05 be read if the court were to give any further instructions. Id. at 995. After the trial court determined that it could give additional instructions, trial counsel requested that the definition of “intentionally” from the pattern jury instructions be given without repeating other final instructions: “they had a simple question and a good question. I would like to request that just the pattern definition of intentionally be read.” Id. at 998. The State agreed and the trial court instructed the jury orally and in writing as follows:

Indiana code 35–41–2–2

, intentional is defined by statute as follows. A person engages in conduct intentionally if when

he engages in the conduct, it is his conscious objectives [sic] to do so. If a person is charged with intentionally causing a result by his conduct, it must have been his conscious objective not only to engage in the conduct, but also to cause the result.

Id. at 999. (reading Indiana Pattern Jury Instructions—Criminal 9.05 (2002)).³ Campbell contends he “received ineffective assistance of trial counsel when trial counsel failed to object to any additional jury instructions during the jury's final deliberations at trial and that the supplementary instruction given contained an incorrect statement of the law.” Br. of Appellant at 11.

Campbell's challenge actually amounts to two separate claims. First, trial counsel was ineffective for failing to object to the giving of any supplemental instructions after deliberations had begun. And second, counsel was ineffective for failing to object specifically to the pattern instruction because according to Campbell it contained an incorrect statement of the law.

As for Campbell's first claim, he cites authority standing for the proposition that once deliberations have begun, the trial court should not give any additional instructions. Br. of Appellant 18–19 (citing Foster v. State, 698 N.E.2d 1166, 1170 (Ind.1998)

; Wolfe v. State, 426 N.E.2d 647, 656 (Ind.1981) ); see also

Lewis v. State, 424 N.E.2d 107, 111 (Ind.1981) (“The proper procedure [for responding to any problem during jury deliberations] is for the court to call the jury back into open court ... and to reread all instructions given to them prior to their deliberations, without emphasis on any of them and without further comment.”). But for over a decade now trial courts have been given “greater leeway to ‘facilitate and assist jurors in the deliberative process, in order to avoid mistrials.’ ” Ronco v. State, 862 N.E.2d 257, 259 (Ind.2007) (quoting Tincher v. Davidson, 762 N.E.2d 1221, 1224 (Ind.2002) (footnote omitted)). And this policy of greater flexibility is reflected in our Jury Rules⁴ as well as in Indiana Code section 34–36–1–6 which empowers a court to respond to, among other things, a jury's desire “to be informed as to any point of law arising in the case.”⁵

The record shows the trial court's final instructions with respect to the charges of battery, aggravated battery, and burglary included “intentionally” as an element of each offense. See Tr. at 1612–14. However none of the instructions defined “intent” or provided a definition of what it meant to act “intentionally.” Thus when the jury advised the bailiff that “they want[ed] to know the definition of intent,” Id. at 994, this is best understood as a “desire[ ] to be informed as to [a] point of law arising in the case.” I.C. § 34–36–1–6

. The trial court therefore properly brought the jury into open court “where the information required” was given in the presence of the parties. Id. Trial counsel did not render ineffective assistance by failing to object to the trial court...