Turner v. State

• Decision Date: 18 June 2001
• Docket Number: No. 49A05-0008-PC-357.,49A05-0008-PC-357.
• Citation: 751 N.E.2d 726
• Parties: Forrest TURNER, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

751 N.E.2d 726

Forrest TURNER, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 49A05-0008-PC-357.

Court of Appeals of Indiana.

June 18, 2001.

Hilary Bowe Ricks, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BROOK, Judge.

Case Summary

Appellant-petitioner Forrest Turner ("Turner") appeals the post-conviction court's denial of his petition. We reverse.

Issue

Turner raises one issue, which we restate as whether under these particular circumstances manifest justice requires that he be granted a new trial despite a prior appellate panel's conclusion that lesser included instructions need not have been given.

Facts and Procedural History

As stated in our original unpublished opinion, the facts most favorable to the judgment are as follows:

On the night of August 19, 1995, Turner and David McCarthy ["McCarthy"] got into an argument with several individuals, including Josh Deem, Jimmy Gann, James McGinnis, Neil Weliver, and Robert Cardona. Turner and McCarthy were on the balcony of Turner's apartment and the other individuals were on the ground below. The individuals on the ground challenged Turner and McCarthy to a fight. Deem threw a bottle at Turner's vehicle, which activated the car alarm. Upon hearing the alarm, Turner stood on the balcony and began shooting in the direction of the people on the ground. Turner and McCarthy fired approximately twenty to thirty shots, "one after another." Record at 542.

Turner shot Gann in the lower back from the apartment's balcony. After Gann fell and called for help, he saw Turner, who was then on the ground level, shoot at him three more times. Weliver observed Gann screaming and Turner "just standing there pointing his gun straight out." Record at 541. Deem, who ultimately died of a gunshot wound to his back, told Cardona that Turner had shot him.

Turner told a police officer investigating the incident that, prior to the shooting, there had been "name calling and general confrontation" between the individuals on the ground and himself and McCarthy. Record at 262. Turner stated that "[the individuals] messed with my car and I went up and fired." Record at 262-63. Turner also said that he did not fear for his life at the time of the incident.

Turner and McCarthy were tried as co-defendants. During trial, the defense requested instructions for the lesser offenses of reckless homicide and criminal recklessness. The trial court rejected these requests and Turner was convicted [of one count of murder, two counts of attempted murder, and one count of carrying a handgun without a license].

Turner v. State, 49A02-9612-CR-778, 691 N.E.2d 516, slip op. at 2-3 (Ind.Ct.App. Jan. 27, 1998). In his direct appeal, Turner argued that the trial court erred in refusing to instruct the jury on the lesser-included offenses of reckless homicide and criminal recklessness. In a memorandum opinion, a panel of this court concluded that there was no serious evidentiary dispute concerning the element of intent, hence the trial court did not err. Both rehearing and transfer were denied.

On March 24, 2000, Turner filed a petition for post-conviction relief asserting: (1) that McCarthy had argued the same instructional issue in his separate appeal to a different panel of the appellate court; (2) that in a memorandum opinion handed down after Turner's appeal, said different panel had concluded that the trial court should have given both an instruction on reckless homicide as a lesser included offense of murder and an instruction on criminal recklessness as a lesser included offense of attempted murder;¹ (3) that McCarthy was later retried and convicted of the lesser-included offenses of reckless homicide and criminal recklessness; and (4) that Turner's case should be revisited due to the inequity between the result in his case as compared with the result in McCarthy's case.

Following a hearing, the post-conviction court entered its order denying Turner's petition and concluding:

8. The petitioner has requested this Court to find that the decision of the Court of Appeals of Indiana in this case is erroneous. The Court recognizes that the split panels have resulted in an inequity in these companion cases. However, the Court of Appeals has ruled that Mr. Turner's conviction and sentence herein are valid, and that the trial court did not err in refusing to instruct the jury on the lesser-included offenses. Such ruling is the law of this case, and this Court cannot change that law.

9. Petitioner's argument that State v. Huffman (Ind.1994) 643 N.E.2d 899 supports such a change is without merit. In Huffman, a change to the law post-appeal occurred and the change was applied retroactively to Huffman's case by the Indiana Supreme Court. No change in the law has occurred here. Further, Huffman states that "A court has the power to revisit prior decisions of its own or of a coordinate court in any circumstance ..." Id. at 901. "Coordinate", according to the American Heritage dictionary means "of equal rank or order." This Court concludes that such language does not empower the trial court to reconsider and reverse the ruling of the Court of Appeals in this case.

10. The law is with the State and against the Petitioner.

Turner appeals this order.

Discussion and Decision

Turner's argument is as follows. At their joint trial, both he and McCarthy testified that they had not intended to injure anyone, but only to scare the young men who they felt were threatening them. However, the trial court refused to instruct the jury on reckless homicide and criminal recklessness as lesser-included offenses. Turner and McCarthy separately appealed this refusal. Different appellate panels reached opposite conclusions on this issue, resulting in McCarthy eventually receiving a retrial while Turner's convictions were affirmed. Turner contends that the appellate panel that decided his appeal erred in affirming the trial court and that manifest justice requires that he be granted a new trial. For support, he cites State v. Huffman, 643 N.E.2d 899, 901 (Ind. 1994), Young v. State, 699 N.E.2d 252, 255 (Ind.1998), and various cases that he claims stand for the proposition that the defendant's own testimony is sufficient to place the issue of intent into dispute, requiring that the lesser offense instruction be given. See Champlain v. State, 681 N.E.2d 696, 700-01 (Ind.1997)

;²

Sharkey v. State, 672 N.E.2d 937, 941 (Ind.Ct.App. 1996),

trans. denied; Bragg v. State, 695 N.E.2d 179, 180 (Ind.Ct.App.1998); Harvey v. State, 652 N.E.2d 876, 877 (Ind.Ct. App.1995),

trans. denied.³

Our standard for reviewing post-conviction decisions is well-settled.

When appealing the denial of a PCR petition, the appellant faces a rigorous standard of review. The appellant must demonstrate that the evidence, when taken as a whole, is without conflict and leads unerringly and unmistakably to a conclusion opposite to that reached by the trial court. We accept the trial court's findings of fact unless they are clearly erroneous, but we do not defer to the trial court's conclusions of law. [The PCR appellant] bears the burden of establishing his grounds by a preponderance of the evidence.

Atchley v. State, 730 N.E.2d 758, 762 (Ind. Ct.App.2000) (citations omitted) (emphasis added), trans. denied. We have stated that issues that were raised on direct appeal are not available for review post-conviction. Clark v. State, 648 N.E.2d 1187, 1190 (Ind.Ct.App.1995), trans. denied. That is, res judicata, which bars relitigation of issues previously adjudicated, applies to post-conviction proceedings. Id.

In an attempt to circumvent the oft-stated rule of res judicata in post-conviction cases, Turner cites Huffman, in which our supreme court stated:

The law of the case doctrine mandates that an appellate court's determination of a legal issue binds both the trial court and the court on appeal in any subsequent appeal involving the same case and relevantly similar facts. The doctrine's admittedly important purpose is to minimize unnecessary relitigation of the legal issues once they have been resolved by an appellate court.

With due respect for the doctrine of res judicata this Court has always maintained the option of reconsidering earlier cases in order to correct error. "A court has the power to revisit prior decisions of its own or of a coordinate court in any circumstance, although as a rule courts should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was `clearly erroneous and would work manifest injustice.'" Finality and fairness are both important goals. When faced with an apparent conflict between them, this Court unhesitatingly chooses the latter.

643 N.E.2d at 901 (citations omitted) (emphasis added). Huffman involved a change in the law, whereas the case at bar does not. However, Huffman does not appear to limit its application to change of law circumstances. Hence, we reiterate that while we should be loath to revisit prior decisions of this court, we do so under "extraordinary circumstances such as where the initial decision was `clearly erroneous and would work manifest injustice.' " Id. We examine whether the present case meets that standard.

Regarding lesser-included instructions, our supreme court has stated:

The analysis set forth in Wright v. State, 658 N.E.2d 563 (Ind.1995), determines whether a court should accept a party's instructions on lesser included offenses. Under this test the court must first decide whether the lesser included offense is either inherently or factually included within the crime charged by the prosecutor's information. Id. If the lesser offense is inherently or factually included, the trial judge must consider whether the evidence provided by both parties creates a serious evidentiary dispute...