Jones v. State
| Decision Date | 19 February 1991 |
| Docket Number | No. 03S00-8910-PC-773,03S00-8910-PC-773 |
| Citation | 566 N.E.2d 1033 |
| Court | Indiana Supreme Court |
| Parties | David K. JONES, Appellant, v. STATE of Indiana, Appellee. |
Susan K. Carpenter, Public Defender, Bev Cummings, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Jane A. Morrison, Deputy Atty. Gen., Indianapolis, for appellee.
This is an appeal from the denial of post-conviction relief. A jury trial resulted in appellant's conviction of First Degree Murder, for which he was sentenced to life imprisonment. We affirmed on direct appeal, Jones v. State (1978), 268 Ind. 640, 377 N.E.2d 1349.
The facts are: In November of 1975, appellant was charged with first degree murder; at the time he was fifteen years of age. Appellant's first trial resulted in a hung jury. Before the start of the second trial, the prosecutor asked appellant's attorney whether he thought appellant would be willing to enter a plea of guilty to manslaughter. According to the testimony at the post-conviction relief hearing, there was a misunderstanding between the prosecutor and appellant's counsel as to the prosecutor's intent at that time.
Appellant's attorney claims he understood the prosecutor to be offering a plea bargain to appellant, whereas the prosecuting attorney testified that although he had little recollection of such a conversation, he did not offer a plea bargain but merely asked an exploratory question of appellant's attorney. Be that as it may, appellant's attorney advised appellant's mother that they might consider entering a plea of guilty to manslaughter. However, after discussion, both the attorney and the mother agreed that this should not be done.
Appellant now claims that he was never advised of the possibility of pleading guilty and had he been so advised, he would have accepted the plea of guilty to manslaughter. The somewhat conflicting testimony of the prosecuting attorney and defense counsel at the post-conviction hearing presented Judge DeClue with a fact-finding decision.
In making his decision, the judge stated:
The judge went on to find that because no plea offer was made it was not necessary to convey the information to the defendant. He thus concluded that this situation did not give rise to a denial of effective assistance of counsel. This Court will not reverse the judgment of the post-conviction court unless the evidence is without conflict and leads unerringly to a contrary result. Schiro v. State (1989), Ind., 533 N.E.2d 1201. We agree with the court below regarding the alleged offer to plea bargain.
Appellant claims he was denied due process and effective assistance of counsel when his attorney failed to object to Instruction No. 18, which instructed the jury on the law of malice and stated in part: "Therefore, malice is implied from any deliberate and cruel act against another however sudden." Appellant takes the position that this language violates Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct 2450, 61 L.Ed.2d 39. In addressing this issue in his findings below, Judge DeClue correctly analyzed Sandstrom as holding that it was improper to presume one of the elements of a crime merely from the fact that certain acts had taken place which constituted other elements of the crime. He observed that the jury instruction in Sandstrom and like cases had failed to maintain the separate and distinct nature of the elements of the crimes.
He pointed out that:
2
We further would point out that this was an issue which was available to appellant on his original appeal and was not raised. Therefore it was waived. Schiro, supra. This issue is available only on the basis that trial counsel's failure to object to the instruction or raise the issue on appeal constituted ineffectiveness of counsel. See Ind. Post-Conviction Rule 1(1). We agree with Judge DeClue's analysis of the situation. Therefore we do not find that trial counsel was ineffective.
The trial court is affirmed.
In sum, I agree with this affirmance on appeal of the trial court's conclusion of law that appellant Jones was not denied effective assistance of counsel and with the affirmance of the judgment as a whole denying post-conviction relief. I cannot, however, agree at all with the majority wherein it approves the trial court's conclusion of law that Final Instruction No. 18 was not erroneous. The trial court's analysis, approved and quoted in the majority opinion, focuses upon the need for instructions to keep discrete elements of a crime separate and distinct. This abstraction falls short here. Here, malice is an essential element of the crime of murder of which appellant Jones stands convicted and confined. Perkins v. State (1934), 207 Ind. 119, 191 N.E. 136. Consequently, it is infirm and a denial of due process in a trial on this charge to read an instruction which kept malice entirely separate and distinct, but which nevertheless could have been understood by reasonable jurors as creating a mandatory presumption that shifted the burden of persuasion on the element of malice. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). It is further pertinent here to recognize that the existence of other related instructions correctly defining the element of malice and correctly placing the burden of persuasion on that element on the State merely contradict and do not explain and cure such an infirmity. Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985).
In Sandstrom, an eighty-nine-year-old woman victim died of blows to the head with a shovel and five stab wounds, while being sexually assaulted. Constitutional error occurred in the trial of that case when the jury was told that the "law presumes that a person intends the ordinary consequences of his voluntary acts." In Francis, a seventy-two-year-old man was shot to death through a door which he had just slammed in the face of Franklin, who was then...
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