Sharkey v. State
| Decision Date | 15 October 1996 |
| Docket Number | No. 45A04-9601-PC-6,45A04-9601-PC-6 |
| Citation | 672 N.E.2d 937 |
| Parties | Michael R. SHARKEY, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. |
| Court | Indiana Appellate Court |
Petitioner-Appellant Michael R. Sharkey appeals the denial of his petition for postconviction relief.
We reverse and remand.
The following issue is dispositive: whether the post-conviction court erred in ruling that Sharkey received effective assistance of trial and appellate counsel.
On July 8, 1987, Sharkey was charged by information with one count of Murder. The charge was tried to a jury in January, 1988. The jury was given verdict forms for Murder, Voluntary Manslaughter, and Not Guilty. The jury returned a verdict of guilty of Voluntary Manslaughter as a class B felony. The conviction was confirmed by our supreme court on appeal in Sharkey v. State, 542 N.E.2d 556 (Ind.1989). In the decision, the supreme court set forth the facts of the case as follows:
On Sunday evening, July 5, 1987, at or about 10:00 p.m., Sharkey went to The Spot, a tavern in Calumet City, drank some beer, then went to another tavern nearby and had several drinks. He then returned to The Spot and began playing pool with a girl at her invitation. He had seen her there before. He had several more drinks and became intoxicated. The girl, Pamela Summers, the victim here, told Sharkey she was a prostitute and charged only twenty dollars. He gave her twenty dollars and they left in his automobile. While he was driving she began to perform oral sex on him and then bit him. He claimed he tried to push her away and she became very violent, beating on him and biting him while he was trying to drive. He put his hand on her neck and squeezed tightly, attempting to push her away from him when she went limp and motionless. He tried to revive her but realized she was dead.
On August 2, 1991, Sharkey filed a pro se petition for post-conviction relief. On May 27, 1994, his newly obtained counsel filed an amended petition, alleging that (1) Sharkey was deprived of due process when the trial court did not instruct the jury on Involuntary Manslaughter and Reckless Homicide; and (2) Sharkey was deprived of effective assistance of counsel when trial counsel did not tender jury instructions on Involuntary Manslaughter and Reckless Homicide, and when appellate counsel did not raise the issue of assistance of counsel. An evidentiary hearing was held, and on October 2, 1995, the post-conviction court denied the petition. The post-conviction court reasoned that under Sills v. State, 463 N.E.2d 228 (Ind.1984), and its progeny, the trial court was not required to give the instructions because the charging information closely tracked the Murder statute. The post-conviction court further reasoned that because the instructions were not required, and would have presumably been refused by the trial court, trial counsel could not have committed prejudicial error in not tendering them. (R.158-60). Sharkey now appeals.
Sharkey contends that the post-conviction court erred in ruling that he received effective assistance of trial and appellate counsel. He argues that the evidence presented at the post-conviction hearing established that trial counsel was ineffective in not tendering jury instructions on the offenses of Involuntary Manslaughter and Reckless Homicide. He further argues that appellate counsel was ineffective for not raising the issue of trial counsel's effectiveness.
The effective assistance of counsel is guaranteed by the Sixth Amendment to the United States Constitution and by Article 1, § 13 of the Indiana Constitution. To prevail on a claim of ineffective assistance of counsel, a defendant must first show that specific acts or omissions by his attorney fall outside the "wide range of professionally competent assistance." Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984). The defendant must also show that counsel's acts or omissions caused prejudice to the defendant. Lawrence v. State, 464 N.E.2d 1291, 1294 (Ind.1984) (adopting Strickland for Indiana). Prejudice may be established by a showing that "there is a reasonable probability that, but for the unprofessional errors, the result of the proceedings would have been different." Id. This "reasonable probability" is not a preponderance of the evidence standard, however, because "a defendant need not show that counsel's deficient conduct more likely than not altered the outcome of the case." Strickland, 466 U.S. at 693, 104 S.Ct. at 2068. Rather, the defendant must show only a "probability sufficient to undermine confidence in the outcome." Id.at 694, 104 S.Ct. at 2068.
Because of this prejudice requirement, "isolated poor strategy, inexperience, or bad tactics do not necessarily amount to ineffectiveness." Lawrence, 464 N.E.2d at 1295. The reviewing court looks to the totality of the circumstances when evaluating claims of ineffective assistance of counsel. Id. at 1294. The standard for reviewing claims of ineffective assistance of trial and appellate counsel is the same. Hackett v. State, 661 N.E.2d 1231, 1233 (Ind.Ct.App.1996).
In the present case, the State developed its case through the testimony of Detective Raymond Myszak. He related a statement that Sharkey made to the police at the time of his arrest: that Sharkey met Summers in a tavern, that he was driving with Summers as a front seat passenger, that she was performing oral sex on him and bit him, that he pushed her away, that she bit him on the chest, that he then squeezed her neck hard, that she started to gurgle, he let go, she went limp and motionless, and he then slapped her face and pinched her thigh in an effort to wake her up. (R. 258-64).
Sharkey testified at trial and admitted that he caused Summer's death. He added that after Summers bit his penis and he pushed her away, she began hitting him, so he grabbed her in a headlock and tried to hold her close. She then bit his chest, and he tried to hold her at arm's length by the shoulder, but she kept coming back, and he kept pushing her away. At some point, his hand slipped off her shoulder and he had her by the front of the neck. (R. 370-373). All this time, Sharkey continued to drive the car. In the end, he "pushed her neck real hard," because "[s]he was hurting [him], and [h]e intended to hurt her...." (R. 373). Sharkey further testified, "I didn't mean to kill her; I never did." (R. 373).
The first question to be answered is whether counsel's failure to tender instructions on Involuntary Manslaughter and Reckless Homicide, as lesser included offenses of Murder, was error. Indiana criminal law includes seven homicide crimes, as set forth in Ind.Code 35-42. Of the seven, four are relevant to this case: Murder, Voluntary Manslaughter, Involuntary Manslaughter, and Reckless Homicide. 1 Among these four, the primary distinction is that the first two apply to a killing done intentionally or knowingly, while the latter two do not. Specifically, the offenses are defined in pertinent part as follows:
1. Murder, Ind.Code 35-42-1-1: to knowingly or intentionally kill;
2. Voluntary Manslaughter, Ind.Code 35-42-1-3: to knowingly or intentionally kill while acting under sudden heat;
3. Involuntary Manslaughter, Ind.Code 35-42-1-4(3): to kill while committing battery; and
4. Reckless Homicide, Ind.Code 35-42-1-5: to recklessly kill.
In determining whether instructions on lesser included offenses should be given, the trial court must engage in a three step analysis. Wright v. State, 658 N.E.2d 563, 566 (Ind.1995). The first step is to compare the statute defining the offense charged with the statute defining the alleged lesser included offense. Id. If (a) the alleged lesser included offense may be established by proof of the same material elements or less than all the material elements defining the offense charged, or (b) the only feature distinguishing the alleged lesser included offense from the offense charged is that a lesser culpability is required to establish the commission of the lesser offense, then the alleged lesser included offense is inherently included in the offense charged. Id. If an offense is inherently included in the offense charged, then the trial court should skip the second step of analysis and proceed to the third step. Id. at 567.
The second step is to compare the statute defining the lesser included offense with the charging instrument in the case. Id. "If the charging instrument alleges that the means used to commit the [offense] charged include all of the elements of the alleged lesser included offense, then the alleged lesser included offense is factually included in the [offense] charged, and the trial court should proceed to step three below." Id.
The third step is to look at the evidence presented in the case by both parties. Id. If there is a serious evidentiary dispute about the element or elements distinguishing the greater from the lesser offense and if, in view of this dispute, a jury could conclude that the lesser offense was committed, but not the greater, then "it is reversible error for a trial court not to give an instruction, when requested, on the inherently or factually included lesser offense." Id.
Reckless Homicide is an inherently included offense of Murder, as the "only feature distinguishing Murder from Reckless Homicide is the lesser culpability required to establish the commission of Reckless Homicide." Id. at 567. Involuntary Manslaughter is not an inherently included offense of Murder. Id. at 569. However, it can be a factually...
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