Dawson v. State

• Decision Date: 30 June 2004
• Docket Number: No. 49A02-0311-PC-1003.,49A02-0311-PC-1003.
• Parties: Percy L. DAWSON, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

810 N.E.2d 1165

Percy L. DAWSON, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 49A02-0311-PC-1003.

Court of Appeals of Indiana.

June 30, 2004.

Transfer Denied September 9, 2004.

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

Steve Carter, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SHARPNACK, Judge.

Percy Dawson appeals the post-conviction court's denial of his petition for post-conviction relief. Dawson raises three issues, which we restate as:

I. Whether Dawson's claim that the trial court incorrectly instructed the jury on the elements of attempted murder is waived;

II. Whether Dawson's claim that his trial counsel was ineffective is barred by res judicata;

III. Whether Dawson was denied the effective assistance of appellate counsel.

We affirm.

The relevant facts follow. Dawson and Pauline Garland were living together, but in April 1995, Dawson moved out. Garland would not let Dawson in her house, but he repeatedly forced himself inside. On April 24, 1995, Dawson came to Garland's house and knocked on her door. Garland told Dawson to go away, but he pushed open the front door and entered the house. Garland told Dawson to leave but said that since he was there, he should get some of his things from her bedroom. Upon entering the bedroom, Dawson opened a drawer, which contained some mail, a switchblade, and a box cutter. Dawson began staring at Garland, who was also in the bedroom, and he said, "I know what it is, you just want him here." Transcript at 225. Garland said, "it doesn't make a difference who stays with me because you're not." Id. Then, Dawson cut the left side of Garland's neck with a box cutter, paced around the bedroom, and said, "I have to do the other side." Id. at 226. Dawson left the bedroom and said, "if I can't have you, nobody will ever have you so I'm going to kill you and then I'm going to kill myself." Id. Dawson came back into the bedroom and, holding the box cutter, kneeled in front of Garland and was about to cut his throat when Garland stopped him. Dawson looked at Garland's neck, became hysterical, and went to get help. Leaving the bedroom, Dawson said, "[Garland] I love you and I know I'll never see you again." Id. at 227.

Garland was taken to the hospital, treated, and released the next morning. The cut Dawson inflicted on Garland's neck was just under her ear down to the area under her chin and was about seven inches long and one-half inch deep.

The State charged Dawson with attempted murder as a class A felony.¹ The trial court gave the following instructions² on the elements of attempted murder:

The crime of Murder is defined by statute as follows:

A person who knowingly or intentionally kills another human being, commits Murder, a Felony.

A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime.

To convict the defendant of Attempted Murder, the State must prove each of the following elements:

1. the defendant

2. knowingly

3. with intent to kill

4. engaged in conduct, cutting at and against the person of [Garland], by means of a deadly weapon, to wit: a box knife,

5. which was a substantial step toward the commission of the crime of Murder which is to knowingly kill another human being.

If the State fails to prove each of these elements, you should find the defendant not guilty.

If the State does prove each of these elements beyond a reasonable doubt, you should find the defendant guilty of the crime of Attempt Murder, a Class A Felony.

Appellant's Appendix at 145-146. The numbers "1," "2," "4," and "5," are crossed off on this written instruction. Instruction number four incorporated the language of the charging information, which read as follows:

[Dawson], on or about April 24, 1995, did attempt to commit the crime of murder, which is knowingly kill another human being, to-wit: [Garland], by engaging in conduct, to-wit: by knowingly cutting at and against the person of [Garland] by means of a deadly weapon, to-wit: a box cutter, which conduct constituted a substantial step toward the commission of murder[.]

Id. at 149-150. The trial court also provided an instruction defining the term knowingly, and that instruction read as follows:

A person engages in conduct "knowingly" if, when he engages in the conduct, he is aware of the high probability that he is doing so.

A person engages in conduct intentionally if, when he engages in the conduct, it is his conscious objective to do so.

You are instructed that knowledge, an essential element to be provide herein, may be inferred from the facts or circumstances as shown by the evidence.

Id. at 163. During the post-conviction proceedings, Dawson and the State disagreed as to whether the trial court gave instruction 16E on specific intent, which read as follows:

To convict a defendant of attempted murder, the jury must find that the defendant acted with the specific intent to kill when he took the substantial step towards committing the crime.

A jury may infer intent to kill from the deliberate act of using a deadly weapon against another in a manner likely to cause death or serious injury.

Id. at 143. A jury found Dawson guilty as charged, and the trial court sentenced him to twenty-five years in the Indiana Department of Correction, with five years suspended.

On March 19, 1997, Dawson filed a direct appeal, wherein he argued that: (1) the special judge lacked jurisdiction; (2) his trial counsel was ineffective for not objecting to the special judge's lack of jurisdiction and for not informing Dawson about the appointment of a special judge; and (3) Dawson was prejudiced by the admission of an exhibit over an objection. On appeal, we affirmed Dawson's conviction. Dawson v. State, No. 49A04-9608-CR-328, slip. op. at 2, 694 N.E.2d 788 (Ind.Ct.App., March 31, 1998). Dawson filed a pro se petition for post-conviction relief, which was later amended by counsel. In Dawson's amended petition for post-conviction relief, Dawson argued that: (1) the trial court erroneously instructed the jury on the elements of attempted murder; (2) he received the ineffective assistance of trial counsel; and (3) he received the ineffective assistance of appellate counsel. After a hearing, the post-conviction court issued an order denying Dawson's petition for post-conviction relief. With regard to whether the trial court erroneously instructed the jury on the elements of attempted murder, the post-conviction court concluded that:

With the appropriate standards of review in mind, the Court first finds that [Dawson] is not entitled to the review of his claim that the Court incorrectly instructed the jury despite the fact that he calls such error "fundamental." In Sanders v. State, 765 N.E.2d 591 (Ind.2002), the trial court denied post-conviction relief finding neither fundamental error nor ineffective assistance of appellate counsel. The Court of Appeals reviewed both claims and affirmed the denial of post-conviction relief. Id. Our Supreme Court granted transfer only to explain:

It was wrong to review the fundamental error claim in a post-conviction proceeding. As we explained in Canaan v. State, 683 N.E.2d 227, 235 n. 6 (Ind.1997)[, reh'g denied, cert. denied, 524 U.S. 906, 118 S.Ct. 2064, 141 L.Ed.2d 141 (1998)] the fundamental error exception to the contemporaneous objection rule applies to direct appeals. In post-conviction proceedings, complaints that something went awry at trial are generally cognizable only when they show deprivation of the right to effective counsel or issues demonstrably unavailable at the time of trial or direct appeal.

Id. at 592. [Dawson] is entitled to no review on his first claim because it was available but not raised on direct appeal. Furthermore, [Dawson] also claims that appellate counsel was ineffective for failing to raise the instruction issue on direct appeal, and the Court reviews that claim below.

Appellant's Appendix at 125. With regard to whether Dawson received the ineffective assistance of trial counsel, the post-conviction court concluded that:

The Court finds that [Dawson] is not entitled to review of his freestanding claim that trial counsel was ineffective. As our Supreme Court explained, "[M]ost free-standing claims of error are not available in a postconviction proceeding because of the doctrines of waiver and res judicata." [Timberlake v. State, 753 N.E.2d 591, 597-598 (Ind.2001),reh'g denied, cert. denied, 537 U.S. 839, 123 S.Ct. 162, 154 L.Ed.2d 61 (2002)]. Like [Dawson], Timberlake raised a claim of ineffective assistance of trial counsel during his direct appeal, and the issue was resolved against Timberlake. Id. at 602. The court refused to revisit Timberlake's claim of ineffective assistance of trial counsel because "res judicata thus bars him from relitigating this issue in postconviction proceedings." Id. Because [Dawson] raised allegations of trial counsel's ineffectiveness during his direct appeal, Dawson, Op. at 1167, his freestanding claim of trial counsel's ineffectiveness is barred by res judicata at the post-conviction level. Ben-Yisrayl v. State, [738 N.E.2d 253 (Ind.2000),reh'g denied, cert. denied, 534 U.S. 1164, 122 S.Ct. 1178, 152 L.Ed.2d 120 (2002)]. And [Dawson] does not allege that appellate counsel was ineffective for raising trial counsel's performance on direct appeal. Amended Petition ¶ 9(c). Furthermore, at the time that appellate counsel filed [Dawson's] brief, the law ... required appellate counsel to allege trial counsel's ineffectiveness on direct appeal or risk waiving that claim. See Landis v. State, 749 N.E.2d 1130, 1133 (Ind.2001)

. Thus, the Court declines to review [Dawson's] freestanding claim that trial counsel rendered...