Moody v. State
| Decision Date | 14 May 2001 |
| Docket Number | No. 45A03-0008-PC-270.,45A03-0008-PC-270. |
| Citation | 749 N.E.2d 65 |
| Parties | Karl MOODY, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. |
| Court | Indiana Appellate Court |
Susan K. Carpenter, Public Defender of Indiana, William D. Polansky, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
Steve Carter, Attorney General of Indiana, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, IN, Attorney for Appellee.
Appellant Defendant, Karl R. Moody (Moody), appeals the denial of his Petition for Post Conviction Relief.
We affirm.
Moody raises one issue on appeal, which we restate as follows: whether he received ineffective assistance of trial and appellate counsel.
We adopt this court's statement of facts as set forth in Moody v. State, No. 45A03-9201-CR-027, slip op. at 2, 597 N.E.2d 394 (Ind.Ct.App. July 8, 1992). The facts are as follows:
On January 28, 1988, Moody and Dewrell Hobson II were engaged in a basketball game at Lincoln School in Gary, Indiana; an argument concerning the game ensued and Moody fatally shot Hobson. Moody was convicted of murder on July 7, 1989.
Id. Moody appealed his conviction challenging whether fundamental error occurred when the trial court failed to sua sponte instruct the jury on voluntary manslaughter, and whether he was denied the effective assistance of trial counsel. On July 8, 1992, this court affirmed Moody's conviction.
On May 8, 1998, Moody filed his Petition for Post Conviction Relief. On April 17, 2000, he filed his Amended Petition for Post Conviction Relief. In his Petition, Moody claimed that his trial counsel was ineffective for failing to ask that the jury be instructed on reckless homicide as a lesser included offense of murder. He also claimed that his appellate counsel was ineffective for failing to raise the issue of reckless homicide as a lesser included offense of murder on direct appeal. A hearing was held on June 14, 2000. On the same day, T. Edward Page, Magistrate, made oral findings of fact and conclusions of law, and a recommendation to the post-conviction court judge that Moody's Petition for Post Conviction Relief be denied. The post-conviction court adopted Page's recommendation and denied Moody's Petition. Moody now appeals the post-conviction court's denial of his Petition for Post Conviction Relief.
A post-conviction petition under Ind. Post Conviction Rule 1 is a quasi-civil remedy, and, as such, the petitioner bears the burden to prove by a preponderance of the evidence that he or she is entitled to relief. Mato v. State, 478 N.E.2d 57, 60 (Ind.1985); Ind. Post Conviction Rule 1(5). On appeal from the denial of a petition for post-conviction relief, we neither reweigh the evidence nor judge the credibility of the witnesses. Montano v. State, 649 N.E.2d 1053, 1056 (Ind.Ct.App.1995), trans. denied. To prevail on appeal, the petitioner must show that the evidence is without conflict and leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Spranger v. State, 650 N.E.2d 1117, 1119 (Ind.1995), reh'g denied. It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that the decision will be disturbed as being contrary to law. Id. at 1120.
The standard by which we review claims of ineffective assistance of counsel is well settled. In order to prevail on a claim of this nature, a defendant must satisfy a two prong test: (1) a showing that counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms, and (2) a showing that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. State v. Moore, 678 N.E.2d 1258, 1261 (Ind.1997), reh'g denied, cert. denied (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
However, we need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. Strickland, 466 U.S. at 697, 104 S.Ct. 2052. To establish prejudice, Jones must first demonstrate that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would be different. Smith v. State, 689 N.E.2d 1238, 1244 (Ind.1997). Isolated poor strategy or bad tactics do not necessarily amount to ineffective assistance of counsel unless, taken as a whole, the defense was inadequate. Brown v. State, 698 N.E.2d 1132, 1139 (Ind.1998),reh'g denied, cert. denied. Furthermore, we "will not lightly speculate as to what may or may not have been advantageous trial strategy as counsel should be given deference in choosing a trial strategy which, at the time and under the circumstances, seems best." Whitener v. State, 696 N.E.2d 40, 42 (Ind.1998).
Moody argues that he received ineffective assistance of trial counsel. Moody asserts that his trial counsel was ineffective for not tendering a jury instruction on reckless homicide. In his direct appeal, Moody raised ineffective assistance of trial counsel, claiming that his trial counsel was ineffective for not tendering an instruction on voluntary manslaughter.
In Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind.2000), our supreme court held:
As a general rule, when this Court decides an issue on direct appeal, the doctrine of res judicata applies, thereby precluding its review in post-conviction proceedings. The doctrine of res judicata prevents the repetitious litigation of that which is essentially the same dispute. A petitioner for post-conviction relief cannot escape the effect of claim preclusion merely by using different language to phrase an issue and define an alleged error. Issues that were available, but not presented, on direct appeal are forfeited on post-conviction review.
Id. (citations omitted). Consequently, the State maintains that because Moody raised ineffective assistance of trial counsel in his direct appeal, it is now res judicata.
On the other hand, Moody asserts that his claim of ineffective assistance of trial counsel should not be barred by res judicata. In his brief, Moody states:
[Appellate counsel] simply missed the real issue in this case. It is wholly unfair to subject Karl Moody's claim of unfair trial due to trial counsel ineffectiveness to the procedural bars of res judicata and waiver based on [appellate counsel's] failure to understand the consequences of raising a claim of ineffective assistance of counsel in the appeal.
However, our case law could not be more clear on the issue of ineffective assistance of trial counsel. In Ben-Yisrayl, 738 N.E.2d at 259, our supreme court explained:
In Woods [v. State, 701 N.E.2d 1208 (Ind.1998) ], we held that a defendant may raise a claim of ineffective assistance of trial counsel for the first time in a post-conviction proceeding, but we emphasized that once the defendant chooses to raise his claim of ineffective assistance of trial counsel (either on direct appeal or post-conviction), he must raise all issues relating to that claim, whether record-based or otherwise. 701 N.E.2d at 1220. A defendant who chooses to raise on direct appeal a claim of ineffective assistance of trial counsel is foreclosed from relitigating that claim. Id.
Additionally, our supreme court has found it to be inconsequential that a defendant's arguments on post-conviction appeal are new arguments about aspects of trial counsel's performance that were not considered on direct appeal. Id. A consideration of the ineffectiveness issue would constitute review of an issue already decided on direct appeal, and, thus, is res judicata. Id.
Accordingly, we find that res judicata bars Moody from relitigating his claim of ineffective assistance of trial counsel on post-conviction appeal.
Moody also argues that he received ineffective assistance of appellate counsel. On direct appeal, Moody's appellate counsel claimed that his trial counsel was ineffective in failing to tender an instruction on voluntary manslaughter. Moody asserts that appellate counsel should have argued that trial counsel was ineffective in failing to tender an instruction on reckless homicide. Because appellate counsel did not make such an argument, Moody maintains that his appellate counsel was ineffective.1
At trial, it was undisputed that Moody shot and killed Dewrell Hobson II (Hobson). However, when asked, "[w]hat were your intentions when you fired that gun," Moody testified that "[m]y intentions was to scare him to let him know that I wasn't afraid of him and his cousin, not to shoot him, just to scare him." (T.R. 321). Thus, it was Moody's position that he did shoot and kill Hobson, but it was not intentional.
Ind.Code § 35-42-1-3 provides:
Ind.Code § 35-42-1-5 provides: "A person who recklessly kills another human being commits reckless homicide, a Class C felony."
Keeping in mind that voluntary manslaughter requires a "knowing" or "intentional" act, we agree that Moody's appellate counsel should not have based the ineffective assistance of trial counsel claim on the fact that trial counsel did not tender an instruction on voluntary manslaughter. This court found the same in Moody's direct appeal when we held, "the [trial] court did not err in failing to sua sponte instruct the jury on voluntary manslaughter...
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