Fisher v. State

Decision Date17 June 2004
Docket NumberNo. 45S03-0306-PC-251.,45S03-0306-PC-251.
Citation810 N.E.2d 674
PartiesDarryl Eugene FISHER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

Michael N. Pagano, Funk & Foster, Hammond, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Nandita G. Shepherd, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

RUCKER, Justice.

The question we address is whether the failure to raise on appeal the trial court's refusal to give a reckless homicide instruction as a lesser-included offense to murder amounts to ineffective assistance of appellate counsel. On the facts of this case, we conclude that it does.

Facts and Procedural History

In August 1993, Darryl Eugene Fisher was charged with murder arising out of a shooting incident at a Gary restaurant. The facts as recounted by the Court of Appeals on direct review are as follows:

[O]n the evening of August 2, 1993, Kizmond Alexander, La'Montrell Thomas, and two other boys were riding bicycles around their neighborhood. After leaving an arcade around 11:00 p.m., the boys went to a diner to eat. The boys entered the lobby, approached the take-out window, and waited for someone to take their orders. When no one came, the boys knocked on the door leading to the seated area. Fisher came to the door. The boys, who knew Fisher from the neighborhood, asked him to get someone to take their orders. Fisher closed the door and went back inside.
When no one again came to the window, the boys knocked on the door a second time. Fisher opened the door. Fisher and one of the boys just stared at each other for a few seconds. Kizmond smiled and began to laugh. Fisher came out through the doorway carrying a beer in his hand. Kizmond asked Fisher not to throw the beer on him. Fisher responded that he was not throwing beer, but was "slinging lead." Fisher then pulled a handgun from his back pocket. Kizmond turned and began to walk out of the door. Fisher placed the handgun against Kizmond's back and fatally shot Kizmond.

Fisher v. State, No. 45A04-9405-CR-188, 651 N.E.2d 356, slip op. at 2, 3 (Ind.Ct.App. June 20, 1995), trans. not sought.

At trial the State claimed the shooting was an act of retaliation. The defense characterized the shooting as an accident or the result of reckless grandstanding. At the close of trial defense counsel tendered an instruction on the lesser offense of reckless homicide, which the trial court declined to give. Ultimately the jury found Fisher guilty of murder. On direct appeal, counsel did not raise the issue of the refused reckless homicide instruction. The Court of Appeals affirmed the conviction.

In May 2001, Fisher filed a petition for post-conviction relief contending, among other things, that appellate counsel rendered ineffective assistance for failing to raise the issue of the refused instruction. At a hearing on the petition, the State asserted "had this trial happened today, there would be error in not giving the instruction, if it was a correct statement of the law." Appellant's App. at 201 (emphasis added). The dispute at the hearing centered on whether at the time of Fisher's trial reckless homicide was an inherently included lesser offense of murder. The post-conviction court concluded that it was, but nonetheless denied Fisher's petition for post-conviction relief on the ground that the jury could not have concluded that the lesser offense of reckless homicide was committed but not the greater offense of murder. Id. at 132. In essence, according to the post-conviction court, there was no serious evidentiary dispute about the element distinguishing the greater offense from the lesser offense. On review a divided panel of the Court of Appeals affirmed the judgment of the post-conviction court. However it did so on grounds different from those on which the post-conviction court relied. The Court of Appeals determined (i) "the state of the law clearly requiring instructions for inherently lesser-included offenses was not settled until after Fisher's direct appeal had been decided" and thus (ii) the court could not "fault appellate counsel for choosing to raise issues that may have appeared at the time to serve Fisher's interests more effectively." Fisher v. State, 785 N.E.2d 320, 326-27 (Ind.Ct.App.2003). Having previously granted transfer, we now reverse the judgment of the post-conviction court.


Fisher contends appellate counsel rendered ineffective assistance for not raising as error on direct appeal the refused reckless homicide instruction. We review claims of ineffective assistance of appellate counsel using the same standard applicable to claims of trial counsel ineffectiveness. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000). The defendant must show that appellate counsel was deficient in his performance and that the deficiency resulted in prejudice. Id. Ineffective assistance claims at the appellate level of proceedings generally fall into three basic categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well. Bieghler v. State, 690 N.E.2d 188, 193-95 (Ind.1997). Fisher's claim is based on the second category.

This Court has noted the need for a reviewing court to be deferential to appellate counsel on this type of claim:

[T]he reviewing court should be particularly sensitive to the need for separating the wheat from the chaff in appellate advocacy, and should not find deficient performance when counsel's choice of some issues over others was reasonable in light of the facts of the case and the precedent available to counsel when that choice was made.

Timberlake v. State, 753 N.E.2d 591, 605 (Ind.2001) (quoting Bieghler, 690 N.E.2d at 194), cert. denied, 537 U.S 839, 123 S.Ct. 162, 154 L.Ed.2d 61 (2002). We employ a two-part test to evaluate "waiver of issue" claims: (1) whether the unraised issues are significant and obvious from the face of the record and (2) whether the unraised issues are "clearly stronger" than the raised issues. Id. at 605-06 (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir.1986)). Stated somewhat differently, "[a] defendant may establish that his appellate counsel's performance was deficient where counsel failed to present a significant and obvious issue for reasons that cannot be explained by any strategic decision." Ben-Yisrayl v. State, 738 N.E.2d 253, 261 (Ind.2000).

On direct appeal, counsel presented three issues: (1) whether evidence that Fisher had previously fired a gun at one of the witnesses was improperly admitted; (2) whether the trial court properly instructed the jury on the defense of accident; and (3) whether the evidence was sufficient to support Fisher's conviction. See Fisher, No. 45A04-9405-CR-188, slip op. at 2. As to issue one, counsel for Fisher argued that the probative value of the evidence was outweighed by its prejudicial impact and therefore should have been excluded under Indiana Evidence Rule 403. Id. at 3. The Court of Appeals disagreed because the evidence tended to disprove Fisher's defense that he shot the victim by accident. Id. at 4. As to issue number two, Fisher argued the trial court erred in giving its own jury instruction regarding the defense of accident. The Court of Appeals determined that Fisher waived this issue because although submitting an accident instruction, Fisher did not object to the instruction actually given by the trial court. Id. at 4. Concerning Fisher's sufficiency of the evidence claim, the Court of Appeals observed that Fisher's argument was merely a request to reweigh the evidence, which the Court declined to do.

The issues counsel raised on direct appeal had little chance of success. Courts of review rarely reverse a jury's guilty verdict on sufficiency of evidence grounds; the law is settled that failure to object to a jury instruction given by the trial court waives the issue for review; and even where meritorious, claims of Rule 404 violations, as with other evidentiary rules, are subject to harmless error analysis. By contrast the unraised issue stands on a different footing. We agree with our colleagues that "the state of the law clearly requiring instructions for inherently lesser-included offenses was not settled until after Fisher's direct appeal had been decided." Fisher, 785 N.E.2d at 326. However, in our view this fact is not dispositive of whether the lesser-included instruction issue was significant, obvious, and clearly stronger than the issues counsel presented on direct appeal.1

There is no question that at the time of Fisher's trial and appeal in 1993-1995, the law on the matter of lesser-included offenses was in a state of flux. One line of authority characterized by this Court's opinions in Sills v. State, 463 N.E.2d 228 (Ind.1984) and Compton v. State, 465 N.E.2d 711 (Ind.1984) advanced the view that the trial court was not required to give an instruction on an alleged lesser-included offense where the charging information closely tracked the statute. See Compton, 465 N.E.2d at 713

; Sills, 463 N.E.2d at 234. This was the apparent ground on which the trial court relied in rejecting Fisher's tendered instruction. On the other hand, another line of authority characterized by this Court's opinions in Aschliman v. State, 589 N.E.2d 1160 (Ind.1992) and Lynch v. State, 571 N.E.2d 537 (Ind.1991) stood for the proposition that the wording of a charging document is not necessarily determinative of whether the trial court should give an instruction on a lesser-included offense. See Aschliman, 589 N.E.2d at 1161; Lynch, 571 N.E.2d at 539.

Acknowledging the ambiguity of the law governing lesser-included offenses, this court finally clarified the matter in Wright v. State, 658 N.E.2d 563 (Ind.1995). Writing "to resolve the unfortunate confusion that has arisen in the cases that address when a trial court should instruct juries on lesser included offenses," id. at 565, we developed a...

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