Randolph v. State

• Decision Date: 10 February 2004
• Docket Number: No. 45A04-0307-PC-376.,45A04-0307-PC-376.
• Court: Indiana Appellate Court
• Parties: Marshall RANDOLPH, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

802 N.E.2d 1008

Marshall RANDOLPH, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 45A04-0307-PC-376.

Court of Appeals of Indiana.

February 10, 2004.

Transfer Denied April 12, 2004.

Susan K. Carpenter, Public Defender of Indiana, Brian Eisenman, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.

Marshall Randolph was convicted following a jury trial of murder. He filed a Petition for Post-Conviction Relief which the post-conviction court denied. He now appeals. We affirm.

Issues

Randolph raises three issues for our review which we consolidate and restate as:

1. Whether the trial court properly instructed the jury regarding self-defense; and

2. Whether Randolph received effective assistance of trial and appellate counsel.

Facts and Procedural History

Randolph was convicted by a jury of murder and his conviction was affirmed by our supreme court. Randolph v. State, 755 N.E.2d 572 (Ind.2001). The facts of the case were outlined as follows:

The essential facts of this tragic and senseless killing are as follows. In the evening hours of August 1, 1998, Randolph approached a group of young men that included Hicks and inquired which one of the group had been "messing with" his sister. The record shows that earlier in the day Marcus Holloway, a member of the group, allegedly made an untoward remark directed at Randolph's sister. After an exchange of words between Holloway and Randolph, the matter seemed to have been closed when Randolph said, "You don't mess with my sister and my sister won't mess with you." However, Randolph continued his belligerence exclaiming, "Next time I come out here. It is not going to be talking." At that point Hicks intervened and asked why Randolph had come into his neighborhood starting trouble and that no one had bothered Randolph's sister. The two then exchanged words, and Randolph produced a handgun pointing it at Hicks. When Hicks raised his hands saying, "Do what you got to do," Randolph fired three times. Hicks died as a result of a gunshot wound to the chest. Randolph was eventually arrested and charged with murder. After a jury trial he was convicted as charged, and the trial court sentenced him to fifty-two years imprisonment.

Id. at 574. Randolph sought post-conviction relief alleging that the trial court gave erroneous instructions to the jury and that he received ineffective assistance of both trial and appellate counsel. The post-conviction court denied Randolph's petition for post-conviction relief and this appeal ensued.

Discussion and Decision

I. Randolph's Petition for Post-Conviction Relief

Under the rules of post-conviction relief, the petitioner must establish the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1, § 5. A petitioner who has been denied post-conviction relief appeals from a negative judgment and he must convince the appellate court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. Hyppolite v. State, 774 N.E.2d 584, 599 (Ind.Ct.App.2002),trans. denied. In other words, we "will disturb a post-conviction court's decision as being contrary to law only where the evidence is without conflict and leads but to one conclusion and the post-conviction court has reached the opposite conclusion." Id. (quoting Miller v. State, 702 N.E.2d 1053, 1058 (Ind.1998),cert. denied, 528 U.S. 1083, 120 S.Ct. 806, 145 L.Ed.2d 679 (2000) (citations omitted)).

When reviewing the post-conviction court's decisions, we will not reweigh the evidence nor will we judge the credibility of the witnesses. Lineberry v. State, 747 N.E.2d 1151, 1154 (Ind.Ct.App.2001). Rather, we consider only the evidence that supports the decision of the post-conviction court together with any reasonable inferences drawn therefrom. Dickenson v. State, 732 N.E.2d 238, 241 (Ind.Ct.App. 2000). Also, we accept the post-conviction court's findings of fact unless clearly erroneous. Dewitt v. State, 755 N.E.2d 167, 170 (Ind.2001).

II. Jury Instructions

A. Standard of Review

Instruction of the jury is within the discretion of the trial court and is reviewed only for an abuse of discretion. Bayes v. State, 791 N.E.2d 263, 264 (Ind. Ct.App.2003), trans. denied. This well-settled standard by which we review challenges to jury instructions affords great deference to the trial court. Id. Further, we note that any error in giving jury instructions is subject to a harmless error analysis. Id.

B. Jury Instructions on Self-Defense

The trial court gave the following instructions regarding self-defense to the jury:

FINAL INSTRUCTION NUMBER 13

The defense of self-defense is defined by law in Indiana as follows: A person is justified in using reasonable force against another person to protect himself or a third person from what he reasonably believes to be the eminent [sic] use of unlawful force. However, a person is justified in using deadly force only if he reasonably believes that that force is necessary to prevent serious bodily injury to himself or a third person or the commission of a forcible felony. No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting himself by reasonable means necessary. However, a person is not justified in using force if: He is committing or is escaping after, the commission of a crime; he provokes unlawful action by another person, with intent to cause bodily injury to the other person; or he has entered into combat with another person or is the initial aggressor, unless he withdraws from that encounter and communicates to the other person his intent to do so or and [sic] the other person nevertheless continues or threatens to continue unlawful action.

The State has the burden of disproving the defense of self-defense beyond a reasonable doubt. Before you may find the defendant guilty of the crime charged, or a lesser offense, you must find beyond a reasonable doubt that the defendant was not acting in self-defense.

FINAL INSTRUCTION NUMBER 14

It is well settled that a defendant need only raise the issue of self-defense so that a reasonable doubt exists. The State then carries the burden of negating the presence of one or more of the necessary elements of self-defense:

1. that the defendant was without fault;

2. was in a place where he had a right to be in relation to his alleged assailant; or,

3. acted in reasonable fear of death or great bodily harm.

The questions concerning the existence of the eminent [sic] use of unlawful force, the necessity or apparent necessity of using force, as well as the amount of force necessary to repel an attack, can be determined only from the standpoint of the defendant at the time and under all existing circumstances. In the exercise of self-defense, the defendant ordinarily is required to act immediately, without time to deliberate and investigate. In such circumstances, the danger which exists only in appearance is to him as real and eminent [sic] as if it were actual.

The important inquiry is: Was the danger actual to the defendant's comprehension? It is not whether an injury was actually intended by the assailant but whether it presented a danger from the defendant's point of view.

Appellant's Appendix at 77-80 (emphasis added). Randolph contends that Instruction number thirteen was improper because an individual who is in the process of committing a crime is not absolutely precluded from claiming self-defense. He contends that evidence was presented that he did not have a license for the gun he was carrying. Thus, he argues that the jury could have been led to believe that, because he was committing a crime by carrying a weapon for which he did not have a license, he was not entitled to claim self-defense. Additionally, he argues that Instruction number fourteen was improper because it informed the jury that a person who is claiming self-defense must have acted without fault. Randolph argues that this is an incorrect statement of the law.

We note first that Randolph has waived his argument to the jury instructions by failing to object at trial and by failing to tender a competing set of instructions. Franklin v. State, 715 N.E.2d 1237, 1241 (Ind.1999). Randolph, however, argues that the instructions constitute fundamental error. However, this claim is not available in post-conviction proceedings because the issue was available to Randolph on direct appeal. The purpose of a petition for post-conviction relief is to raise issues unknown or unavailable to a defendant at the time of the original trial and appeal. Lockhart v. State, 632 N.E.2d 374, 375 (Ind.Ct.App.1994),trans. denied. Issues available, but not raised, at trial or on direct appeal are waived for post-conviction proceedings. Timberlake v. State, 753 N.E.2d 591, 597 (Ind.2001),cert. denied, 537 U.S. 839, 123 S.Ct. 162, 154 L.Ed.2d 61 (2002). Additionally, our supreme court has held that freestanding allegations of fundamental error are not available in post-conviction proceedings. Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002) ("The fundamental error exception to the contemporaneous objection rule applies to direct appeals. In post-conviction proceedings, complaints that something went awry at trial are generally cognizable only when they show deprivation of the right to effective counsel or issues demonstrably unavailable at the time of trial or direct appeal."). Thus, Randolph's fundamental error argument is not available in post-conviction proceedings. Therefore, Randolph has waived this argument. However, we still address the issue in terms of the effectiveness of his trial and appellate counsel.

III. Ineffective Assistance of Counsel

A. Standard of Review

To prevail on a claim of ineffective assistance of trial counsel,...