Wilson v. State
| Decision Date | 24 February 2012 |
| Docket Number | No. 34A02–1012–PC–1389.,34A02–1012–PC–1389. |
| Citation | 962 N.E.2d 704 |
| Parties | Undray D. WILSON, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from the Howard Superior Court; The Honorable Stephen M. Jessup, Judge; Cause No. 34D02–1011–PC–12.Hilary Bowe Ricks, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Undray Wilson was convicted of murder 1 and our Indiana Supreme Court affirmed. He sought post-conviction relief alleging his trial counsel was ineffective because he did not seek to instruct the jury on lesser included offenses, did not challenge misconduct by the prosecutor, and did not investigate and locate additional witnesses. Wilson also argued appellate counsel was ineffective because he did not challenge the admission of certain evidence at trial. Post-conviction relief was denied, and we affirm .2
The facts most favorable to Wilson's conviction are:
[S]hortly before noon on February 27, 2000, Wilson was standing on the front porch of his house when Richard Listenbee and his brother David Nesbitt drove by in a car. Listenbee was driving, and Nesbitt was seated in the passenger seat. The three men had been involved in a physical altercation two days earlier. The record shows the car drove past the house and turned into an alley. Intending to back up and confront Wilson, Listenbee removed a handgun from the glove compartment of the car. At that point, Wilson went into the house, retrieved his own weapon, returned to the porch, and began shooting at the car before it left the alley. Nesbitt then exited the car, fired one or two shots, and got back in the car. As the car sped away, Wilson ran off the porch into the middle of the street and fired several more shots. One of the bullets struck Nesbitt in the chest, and he died as a result.
Wilson was arrested and charged with murder. After a jury trial, he was convicted as charged. The trial court sentenced Wilson to fifty-five years imprisonment.
Wilson v. State, 770 N.E.2d 799, 800 (Ind.2002). Wilson appealed, arguing the evidence was not sufficient to negate his claim of self-defense and the trial court should not have admitted a photograph into evidence. Our Supreme Court rejected those arguments and affirmed his conviction.
Wilson then sought post-conviction relief, alleging trial and appellate counsel were ineffective. The post-conviction court denied relief, and Wilson appeals that denial.
The standard of review in appeals from post-conviction negative judgments is well-established. A party appealing from such a negative judgment must establish the evidence is without conflict and, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision. Conner v. State, 711 N.E.2d 1238, 1244 (Ind.1999). The reviewing court accepts the trial court's findings of fact unless they are clearly erroneous, Ind. Trial Rule 52(A), but does not defer to the trial court's conclusions of law. Conner, 711 N.E.2d at 1245. The reviewing court examines only the probative evidence and reasonable inferences that support the post-conviction court's determination and does not reweigh the evidence or judge the credibility of the witnesses.
The constitutional guarantee of counsel under the Sixth Amendment to the United States Constitution includes the right to effective assistance of counsel. Sweeney v. State, 704 N.E.2d 86, 106 (Ind.1998), cert denied 527 U.S. 1035 (1999). Claims of ineffective assistance of trial counsel are generally reviewed under the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984), reh'g denied. Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.2006). A claimant must show counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms, and the deficient performance resulted in prejudice. Id. Prejudice occurs when the defendant demonstrates a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is one sufficient to undermine our confidence in the outcome. Id.
The two parts of the Strickland test are separate inquires, but a claim may be disposed of on either prong. Id. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, we should do so. Id.
Wilson's counsel did not request lesser-included offense instructions and instead chose to pursue only self-defense. Wilson notes witness testimony was inconsistent as to who shot first and whether Wilson continued to shoot at the car as it drove away. This, Wilson says, would have entitled him to instructions on voluntary manslaughter, reckless homicide, and possibly other offenses “because the evidence that contradicted self defense supported sudden heat, battery, and recklessness.” (Br. of Appellant at 15.)
As a general rule, a defendant in a criminal case is entitled to have the jury instructed on any defense theory that has some foundation in the evidence. Springer v. State, 779 N.E.2d 555, 558 (Ind.Ct.App.2002), aff'd in part, adopted in part, 798 N.E.2d 431 (Ind.2003). This is so even if the evidence supporting the defense is weak and inconsistent. Id. However, the evidence must have some probative value to support the defense. Id. As trial counsel's decision not to request lesser-included offense instructions was a reasonable strategic decision, we may not find counsel ineffective.
In Autrey v. State, 700 N.E.2d 1140, 1141 (Ind.1998), trial counsel decided not to tender instructions on lesser-included offenses as part of an “all or nothing” trial strategy. It is well-established that ineffective assistance of counsel claims cannot succeed based on counsel's strategic decisions, unless the strategy is so deficient or unreasonable as to fall outside of the objective standard of reasonableness. Id. This is so even when “such choices may be subject to criticism or the choice ultimately prove detrimental to the defendant.” Id. Therefore, a tactical decision not to tender an instruction on a lesser-included offense does not amount to ineffective assistance, even where the lesser-included offense is inherently included in the greater offense. Id.
The victim in Autrey was killed in a brawl that involved a number of people. There was conflicting testimony about whether the victim was killed by a bottle, a cement block, or a bat, and about who threw the object or wielded the bat. Autrey's counsel decided to pursue an all-or-nothing strategy, and we determined that strategy was appropriate and reasonable when witnesses' testimony “was so discordant that by the end of this trial a reasonable juror could have concluded the victim was not struck by the bottle or the cement block, that the defendant never used the bat, and that the blood on defendant's clothes came from the bat alone.” Id. at 1141–42. In closing argument, Autrey's trial counsel tried to convince the jury that someone else caused the victim's death. Id. at 1142.
Wilson's trial counsel testified he did not tender lesser-included offense instructions because those offenses “would have been contradictory to that [self-defense] defense and would have made it much less effective.” (Tr. at 8–9.) He also noted the facts of Wilson's case did not lend themselves to an argument Wilson acted in sudden heat so as to justify voluntary manslaughter. Counsel's all-or-nothing decision to pursue only self-defense was a strategic decision like that in Autrey and we cannot find counsel ineffective on that ground.
Wilson next argues trial counsel was ineffective because he did not object to prosecutorial misconduct during closing argument. The procedure for deciding a claim of prosecutorial misconduct consists of two steps. Gasaway v. State, 547 N.E.2d 898, 901 (Ind.Ct.App.1989), reh'g denied, trans. denied. First, the court must determine whether the prosecutor in fact engaged in misconduct. Id. Determination is made by reference to case law and the disciplinary rules of the Code of Professional Responsibility. Id . Then, we consider whether the misconduct, under all circumstances, placed the defendant in a position of grave peril to which he should not have been subjected. Id. Wilson has identified instances of misconduct, but we cannot say they subjected him to grave peril.
It is misconduct to phrase final argument in a manner calculated to inflame the passions or prejudices of the jury. Id. For example, we have found misconduct when the prosecutor stressed the jurors' right to be safe in their own homes and asked one juror if he wanted his wife raped. In finding misconduct in that case, we held the prosecutor was appealing to the jurors' fears and was asking them to convict the defendant because he was dangerous, not because he was guilty. Id. (citing Johnson v. State, 453 N.E.2d 365, 369 (Ind.Ct.App.1983)).
The danger inherent in inflammatory comments is that the jury, because it is fearful, angry, or controlled by other emotions, will find guilt no matter what the evidence indicates. Id. at 901–02. We therefore focus on the probable effect the prosecutor's actions would have on the jury's ability to judge the evidence fairly. This focus is necessarily fact sensitive and entails a consideration of grave peril. Id. at 902.
Our adversary system permits a prosecutor to prosecute with “earnestness and vigor.” Id. at 902 (quoting Berger v. United States, ...
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