Morrison v. State

• Decision Date: 16 March 1992
• Docket Number: No. 45A05-9108-CR-274,45A05-9108-CR-274
• Citation: 588 N.E.2d 527
• Parties: Herman Ruffin MORRISON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 527

588 N.E.2d 527

Herman Ruffin MORRISON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 45A05-9108-CR-274.

Court of Appeals of Indiana Fifth District.

March 16, 1992.

Nathaniel Ruff, Appellate Public Defender, Crown Point, for appellant-defendant.

Linley E. Pearson, Atty. Gen. of Indiana and Richard C. Webster, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.

BARTEAU, Judge.

A jury that was instructed on both murder ¹ and voluntary manslaughter ² found Herman Morrison guilty of murder. Morrison argues in this direct appeal that reversible error occurred because (1) the voluntary manslaughter instruction incorrectly informed the jury that the prosecution has the burden of proof on sudden heat, the statutory factor that mitigates a killing that would otherwise be murder, (2) the error was fundamental, and therefore not waived by defense counsel's failure to object to the instruction, and (3) that failure to object amounted to ineffective assistance of counsel.

The State "concede[s] that the instruction mis-states [sic] the elements [of voluntary manslaughter] by adding sudden heat as an element to be proven by the State." Appellee's Brief at 12. However, the State provides four reasons why the murder conviction should be affirmed, restated as: (1) the prosecutor's objection to the voluntary manslaughter instruction should have been sustained, because the evidence excluded the possibility of a conviction thereof, (2) because the instruction should not have been given, any error in its content was harmless, (3) assuming the evidence warranted the instruction, its incorrect content was not fundamental error, and therefore the defense's failure to object to the instruction waived appellate review, and (4) defense counsel was not ineffective because failure to object to the instruction was a tactical decision.

The instruction at the center of this case, final instruction # 6, without question identified sudden heat as an element of voluntary manslaughter to be proven by the prosecution. ³ Therefore, as the State concedes, the instruction misstated the law, for "[s]udden heat is not an element of voluntary manslaughter, but rather a mitigating factor in conduct that would otherwise be murder." Palmer v. State (1981), Ind., 425 N.E.2d 640, 644 ("Palmer I").

Palmer I explains the procedural fundamentals of sudden heat and voluntary manslaughter: the voluntary manslaughter statute sets out a sudden heat affirmative defense to the charge of murder; sudden heat differs from self-defense in that the latter is a complete defense (if accepted by the factfinder), whereas sudden heat merely mitigates murderous conduct to voluntary manslaughter; when evidence of sudden heat is introduced, the State must negate the evidence beyond a reasonable doubt before a conviction for murder may be had. 425 N.E.2d at 644. Evidence of sudden heat may be introduced through the State's evidence, or the defendant's, or both. Id. The State may seek to negate the evidence of sudden heat during its case-in-chief, or through rebuttal of the defendant's evidence. Id.; accord Wolfe v. State (1981), Ind., 426 N.E.2d 647, 650-53; see also Finch v. State (1987), Ind., 510 N.E.2d 673. ⁴

In Palmer I, a jury that had been instructed on both murder and voluntary manslaughter chose murder. On direct appeal, the defendant argued that because sudden heat is an element of voluntary manslaughter, then by implication an absence of sudden heat is an element of murder, and the defendant's murder conviction should be reversed because the State had not proven an absence of sudden heat. The supreme court pointed out the faulty premises of the argument by explaining the fundamentals set out in the preceding paragraph, then affirmed the murder conviction on alternate grounds: there was sufficient evidence for the jury to have concluded beyond a reasonable doubt the defendant was not acting under sudden heat when he shot the victim, or, the jury could have concluded that the defendant's homicidal response was disproportionate to the victim's provocation. 425 N.E.2d at 645.

The Palmer I opinion reproduced verbatim the jury instruction on voluntary manslaughter, which stated that the "essential elements" of voluntary manslaughter were the voluntary killing of a human being, without malice, and in a sudden heat. Id. at 644. The supreme court "note[d] in passing that the absence of malice is not an element of voluntary manslaughter." Id. However, the supreme court offered no comment on the erroneous statement in the instruction that sudden heat is an element of voluntary manslaughter, despite the unequivocal teaching earlier in the opinion that "[s]udden heat is not an element of voluntary manslaughter...." Id.

That silence generated post-conviction litigation, with the defendant arguing that the instruction's treatment of sudden heat as an element of voluntary manslaughter was reversible error. This court agreed in a split decision reported as Palmer v. State (1990), Ind.App., 553 N.E.2d 1256, reh'g denied ("Palmer II"). One judge deemed the instruction a fundamental error, and therefore considered the issue not waived despite not having been argued in the direct appeal, Palmer I, and opined that trial counsel had been ineffective for not having objected to the instruction and that appellate counsel had been ineffective for omitting the issue from Palmer I. A second judge thought ineffective assistance of counsel required reversal, but thought the instruction not a fundamental error.

On transfer, the supreme court vacated Palmer II in Palmer v. State (1990), Ind., 563 N.E.2d 601 ("Palmer III"), splitting three to two. The majority noted the instruction on voluntary manslaughter was a pattern jury instruction, then assumed for the sake of argument that the instruction was incorrect, but, after sketching the facts on sudden heat, concluded "[u]nder the circumstances, we cannot say that appellant suffered any disservice by the giving of the instruction and the manner in which it was handled by his trial counsel." Id. at 604. The Palmer III majority added that the error "was readily available on the original appeal and not a proper subject for post-conviction relief." Id. The two dissenters in Palmer III found "the jury was presented with the evidentiary predicate for the conclusion that appellant was guilty of voluntary manslaughter and not murder[,]" and thought "the failure of counsel to seek a correct and proper instruction on voluntary manslaughter, where a conviction of that lesser offense was actively sought in argument to the jury as an alternative to the self-defense claim, constituted ineffective representation warranting a grant of post-conviction relief." 563 N.E.2d at 605 (DeBruler, J., dissenting). ⁵

Seven months after Palmer III was handed down, it was in effect vacated on rehearing in Palmer v. State (1991), Ind., 573 N.E.2d 880 ("Palmer IV"), by a vote of four to one. ⁶ Palmer IV affirmed Palmer II, and held the instruction was erroneous in regard to both absence of malice and sudden heat, that trial counsel was ineffective for failing to object to the instruction, and that appellate counsel was ineffective for not raising the issue on appeal.

Morrison contends instruction # 6 was reversible error, and that defense counsel rendered ineffective assistance by not objecting to it. We turn first to the claim of ineffective assistance of counsel. To prevail on this argument, Morrison must show that counsel's performance was deficient, and that the substandard representation prejudiced the result. Lawrence v. State (1984), Ind., 464 N.E.2d 1291.

In regard to the performance prong, in the context of counsel's failing to object to an instruction stating the prosecution must prove sudden heat before there can be a conviction for voluntary manslaughter, it was argued throughout the Palmer post-conviction cases that acquiescence in such an instruction was a tactical choice, insulated from censure. See, e.g., Palmer II, 553 N.E.2d at 1259-60; Palmer III, 563 N.E.2d at 604. However, in light of Palmer IV, it appears that where sudden heat as a mitigating factor was a primary theory of the defense, not objecting to such an instruction is per se deficient performance. Accordingly, our focus here is not on the performance prong of ineffective assistance, but on the prejudice prong. Morrison carries the burden to "affirmatively prove he was prejudiced by his counsel's conduct by showing there is a reasonable probability that, but for the unprofessional errors, the result of the proceedings would have been different." Lawrence, 464 N.E.2d at 1294. Appellate review under the prejudice prong is thus fact-sensitive, and the reviewing court "must consider the totality of the evidence...." Id.

"Sudden heat is anger, rage, resentment, or terror sufficient to obscure the reason of an ordinary man; it prevents deliberation and premeditation, excludes malice, and renders a person incapable of cool reflection." McBroom v. State (1988), Ind., 530 N.E.2d 725, 728. Tersely, sudden heat is "sufficient provocation to induce such passion to render the defendant incapable of cool reflection." Fox v. State (1987), Ind., 506 N.E.2d 1090, 1097. Both the existence of sudden heat and negation thereof by the prosecution are questions of fact committed to the jury. Id. Questions of sudden heat and the adequacy of provocation are judged by an objective, "ordinary man" standard. Harrington v. State (1992), Ind., 584 N.E.2d 558, 563.

"[A]ny appreciable evidence of sudden heat justifies [the giving of] an instruction on voluntary manslaughter." Underwood v. State (1989), Ind., 535 N.E.2d 118, 120. But, as a matter of law, words alone cannot generate sudden heat. Perigo v. State (1989), Ind., 541 N.E.2d 936. And, evidence that the defendant was "angry" does not, standing alone, show sudden heat; there must be evidence that the...