Palmer v. State, 49A02-8804-PC-00154

Docket NºNo. 49A02-8804-PC-00154
Citation553 N.E.2d 1256
Case DateMay 17, 1990
CourtCourt of Appeals of Indiana

Michael D. Palmer, Pendleton, pro se.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.


Michael D. Palmer (Palmer) appeals the denial of his Petition for Post-Conviction Relief.

We reverse.

On August 30, 1978, Palmer was charged with murder. The indictment alleged that the act occurred June 19, 1978. Palmer was convicted of murder on May 13, 1980, following a jury trial. An earlier trial had resulted in a hung jury.

Palmer instituted a direct appeal of his conviction, presenting two issues: whether the verdict was contrary to law and to the evidence and whether the State failed to prove all the elements of murder, and that therefore the evidence supported at most a conviction for voluntary manslaughter. His conviction was affirmed. See Palmer v. State (1981) Ind., 425 N.E.2d 640. Palmer's counsel on appeal was different than at trial.

Palmer filed a Petition for Post-Conviction Relief on March 28, 1984, and amended it February 19, 1986. Following a hearing, the petition was denied. He was represented by the Indiana Public Defender's Office at the post-conviction proceeding but brings this appeal pro se.

Palmer's brief presents eight issues, one of which compels reversal: whether or not the jury was correctly instructed on the lesser included offense of voluntary manslaughter. However, because aspects of waiver are involved, we must necessarily address Palmer's contention of ineffective assistance of trial and appellate counsel, as well as the post-conviction court's ruling on Palmer's right to post-conviction review.


As a preliminary issue we consider whether the contentions made by Palmer "The statutory law upon which this charge is based reads, insofar as applicable, as follows:

after his direct appeal were reviewable in post-conviction proceedings. Palmer alleges the jury was incorrectly instructed as to the issue of voluntary manslaughter. The trial court's instruction read as follows:


'A person who knowingly or intentionally kills another human being while acting under sudden heat commits voluntary manslaughter, a class B felony.'

The essential elements of this crime are:

1. The voluntary killing of a human being

2. Without malice, and

3. In a sudden heat.

Sudden heat as used herein means an access [sic] of rage or anger suddenly arising from a contemporary provocation occurring at the time of the killing." Trial Record at 132.

The post-conviction court issued findings of fact and conclusions of law pertinent to the issues under review. In its findings the court stated that trial counsel believed the voluntary manslaughter instruction given at trial fit Palmer's defense and that testimony from appellate counsel indicated that even if he had believed the instruction to be erroneous he would not have challenged it as he believed it to be favorable to Petitioner.

The court further determined:

"The Voluntary Manslaughter instruction was given from a pattern jury instruction book. The first case addressing the issue of whether 'sudden heat' was an element of the crime did not come down until after Petitioner's trial. See Anthony v. State (1980) , 409 N.E.2d 632. In addition, both trial and appellate counsel felt the instruction was advantageous to Petitioner." Trial Record at 286.

In its Conclusions of Law the court determined that Palmer had failed in his burden of proving ineffective assistance of trial counsel and that fundamental error could not be raised as a free standing issue after a direct appeal in a post-conviction relief petition.

The post-conviction court's ruling does not take cognizance of the fact that the statutory definition of voluntary manslaughter changed effective October 1, 1977. Prior to that date, voluntary manslaughter was defined under I.C. 35-13-4-2 as the "voluntar[y] kill[ing of] any human being, without malice, expressed or implied, in a sudden heat." (Burns Code Supp.1976). 1

After October 1, 1977, I.C. 35-42-1-3 defined voluntary manslaughter as follows:

"(a) A person who knowingly or intentionally kills another human being while acting under sudden heat commits voluntary manslaughter, a class B felony.

(b) The existence of sudden heat is a mitigating factor that reduces what otherwise would be murder under section 1(1) [35-42-1-1(1) ] of this chapter to voluntary manslaughter." 2

Subsection (b) appears to codify caselaw existing at the time of the statute's enactment holding that sudden heat is not a part of the State's burden of proof regarding culpability, but rather tends to negate an indicia of culpability, i.e., malice. Holloway The State's response is that Palmer's challenge to the alleged error has been waived and that in any event he was not harmed by the instruction. The post conviction court agreed with the State. It is true that where an issue is available at the time of direct appeal, failure to raise it amounts to a waiver for purposes of post-conviction review, absent a showing of fundamental error. Barker v. State (1987) Ind., 508 N.E.2d 795. However, Palmer presents an issue of fundamental error, and raises the issue within the purview of the post-conviction rules. See Bailey v. State (1985) Ind., 472 N.E.2d 1260, 1263.

                v. State (1976) 3d Dist., 170 Ind.App. 155, 352 N.E.2d 523.   In addition to the change in the voluntary manslaughter statute, effective October 1, 1977, caselaw prior to the Anthony decision in 1980 clearly indicated that sudden heat was not an element of voluntary manslaughter.  Wallace v. State (1979) 1st Dist., 182 Ind.App. 256, 395 N.E.2d 274.   Therefore the post-conviction court erred in ruling that the law on voluntary manslaughter did not change until 1980.  Under the statute existing at the time of the offense and at the time of the trial, the instruction regarding voluntary manslaughter was incorrect.  It was also misleading under standards articulated in the developing caselaw which, by the time of Palmer's trial in May, 1980, established that sudden heat was not an element of voluntary manslaughter.  Wallace, supra, 395 N.E.2d 274.   See also Nuss v. State (1975) 1st Dist., 164 Ind.App. 396, 328 N.E.2d 747

Palmer alleges ineffective assistance of trial counsel for, among other things, failing to object to the instruction and ineffective assistance of appellate counsel for failing to raise the instruction error, as well as the allegation of ineffective trial counsel, in Palmer's direct appeal. Ineffective assistance of counsel is shown where counsel's performance is deficient and where such deficiency resulted in prejudice to the defendant. Strickland v. Washington (1984) 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; Steele v. State (1989) Ind., 536 N.E.2d 292. The requisite showing is met here. 3

Palmer's trial counsel testified that he could not recall whether he knew the voluntary manslaughter instruction to be an incorrect statement of law, but that he did not object to it because "it fit our defense." Record at 430. Appellate counsel for Palmer also stated that he could not recollect whether or not he knew the instruction was incorrect. He further testified that even if he had believed it to be erroneous, he would not have raised it in the appellate brief because he believed the instruction to be favorable to his client.

"When failure of counsel is based on ignorance of the law, the nonfeasance is not deemed a mere strategy decision, and may constitute ineffective assistance of counsel. Heyward v. State (1988), Ind.App., 524 N.E.2d 15, 20 (citing Smith v. State (1979), 272 Ind. 216, 396 N.E.2d 898)." Gann v. State (1990) 4th Dist. Ind.App., 550 N.E.2d 803.

Thus, counsels' failure to recognize that the instruction was incorrect cannot be justified as trial strategy.

Nor was Palmer benefitted by the instruction. As will be hereinafter discussed, the charge as given was misleading, and when considered in conjunction with other instructions, left an impression that a jury could not appropriately find Palmer guilty of the less serious offense of For this reason, we cannot agree that review of the merits of Palmer's argument is precluded. Fundamental error, for purposes of post-conviction relief, is error which, if not rectified, would result in the denial of fundamental due process. Propes v. State (1990) Ind., 550 N.E.2d 755; Bailey, supra, 472 N.E.2d 1260. We hold that the instruction in question rises to the level of fundamental error which allows post-conviction review upon the merits and ultimately warrants reversal of the denial of post-conviction relief.

voluntary manslaughter absent proof beyond a reasonable doubt of the absence of malice and the presence of sudden heat.


The voluntary manslaughter instruction informed the jury that "the essential elements of this crime" were voluntary killing, without malice, and in a sudden heat. Trial Record at 132. Palmer contends that this instruction placed the burden upon the State to demonstrate that Palmer acted without malice and in a sudden heat. At the post-conviction hearing, appellate counsel stated that the court's instruction benefitted Palmer because it provided "a lot more elements and a lot more things to argue to a jury" than the 1977 change apparently did. Record at 442. The State urges in its brief that instructing that the State carried the burden on sudden heat "could only work to the Defendant's favor." State's brief at 15.

At first glance, the argument is seductively appealing. However, we are in agreement with Palmer's position that the instruction is misleading, especially in conjunction with the other instructions. That the instruction was an incorrect statement of...

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