Woodson v. State

• Decision Date: 17 May 2002
• Docket Number: No. 49A04-0109-PC-396.,49A04-0109-PC-396.
• Citation: 767 N.E.2d 1022
• Parties: Keith WOODSON, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

767 N.E.2d 1022

Keith WOODSON, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 49A04-0109-PC-396.

Court of Appeals of Indiana.

May 17, 2002.

Susan K. Carpenter, Public Defender of Indiana, John Ribble, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Robin Hodapp-Gillman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

KIRSCH, Judge.

Keith Woodson was convicted of two counts of attempted murder as an accomplice,¹ a Class A felony. On direct appeal, this court rejected Woodson's claims of prosecutorial misconduct and insufficiency of the evidence and affirmed his convictions in an unpublished memorandum decision. Woodson v. State, 647 N.E.2d 705 (Ind.Ct.App.1995). Woodson filed a pro se petition for post-conviction relief, which was later amended with the assistance of counsel. The post-conviction court denied the petition and Woodson now appeals raising two issues for our review: 1) whether the trial court committed fundamental error when it instructed the jury on the elements of attempted murder as an accomplice; and 2) whether Woodson received ineffective assistance of both trial and appellate counsel. We address only the dispositive first issue.

We reverse the decision of the post-conviction court, grant Woodson's petition for post-conviction relief, and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

The facts most favorable to the judgment and recited by this court on direct appeal reveal that on March 23, 1993, Anthony Tigner and Roman Brown were traveling in Brown's car when they saw Woodson, Brian Chambers, and Doren Douthit in Woodson's car. Brown pulled alongside Woodson's car, and Tigner asked Woodson about one hundred dollars Woodson allegedly owed him. The men exited their cars, and Tigner and Woodson began to physically fight about the money.

After the fight, Woodson drove Tigner and Douthit to Woodson's aunt's house, ostensibly to get the money. Chambers and Brown followed in Brown's car. Woodson went into the house alone and returned without the money. The five men then returned to their original cars, and Brown and Woodson drove off in different directions. While driving around after the incident, Woodson, referring to Brown and Tigner, said that he was "going to get them." Trial Record at 300, 301.

Later the same day, Woodson saw Brown's car in front of a barbershop. As Woodson drove alongside, Brown and Tigner exited their car and walked toward the shop. Chambers, who was in the passenger seat of Woodson's car, held a gun out the window. Tigner, seeing the gun, said, "I guess you get ready to shoot me over this." Id. at 166. Chambers told Tigner to back up and, as Tigner began to do so, Woodson ordered Chambers several times to "shoot him." Id. at 167, 304-05. Chambers then shot Tigner in the back, and Brown began to run. With Brown on foot, Woodson followed in his car, and Chambers shot at Brown striking him in the leg.

Chambers and Woodson were tried together. All parties agreed that Chambers was the one who shot the victims; therefore, Woodson was tried as an accomplice to the attempted murders of Tigner and Brown. During the trial, Chambers testified that he did not aim the gun and that he had no intention of shooting either victim. Id. at 416-417. Chambers further testified that Woodson did not know Chambers had a gun and did not tell him to shoot. Id. at 417, 446. Chambers testified that he shot the gun only to defend himself from Tigner and Brown. Id. at 417. Woodson did not testify at the trial.

The jury found Woodson guilty of two counts of attempted murder as an accomplice, and his convictions were upheld on direct appeal. Woodson's petition for post-conviction relief was denied, and he now appeals.

DISCUSSION AND DECISION

Our court will not set aside the trial court's denial of a post-conviction petition unless "`the evidence as a whole leads unerringly and unmistakably to a conclusion opposite to that reached by the trial court.'" Ben-Yisrayl v. State, 753 N.E.2d 649, 653 (Ind.2001), petition for cert. filed (U.S. Feb. 1, 2002) (No. 01-8443) (quoting Weatherford v. State, 619 N.E.2d 915, 917 (Ind.1993)); Lambert v. State, 743 N.E.2d 719, 726 (Ind.2001), cert. denied, ___ U.S. ___, 122 S.Ct. 1082, 151 L.Ed.2d 982 (2002); 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). In making this determination, we consider only the evidence that supports the decision of the post-conviction court, together with any reasonable inferences to be drawn therefrom. Badelle v. State, 754 N.E.2d 510, 521 (Ind.Ct.App. 2001), trans. denied.

Post-conviction procedures do not provide a petitioner with an opportunity to present freestanding claims that contend the original trial court committed error. Wrinkles v. State, 749 N.E.2d 1179, 1187 n. 3 (Ind.2001), cert. denied, ___ U.S. ___, 122 S.Ct. 1610, ___ L.Ed.2d ___, 2002 WL 634145 (April 22, 2002) (citing Lambert, 743 N.E.2d at 726). Claims that were available on direct appeal but not presented are waived for post-conviction review unless the claimed error is fundamental. Id. (citing Conner v. State, 711 N.E.2d 1238, 1246 (Ind.1999), cert. denied, 531 U.S. 829, 121 S.Ct. 81, 148 L.Ed.2d 43 (2000)). Fundamental error is a substantial, blatant violation of due process, which must be so prejudicial to the rights of a defendant as to make a fair trial impossible. Hopkins v. State, 759 N.E.2d 633, 638 (Ind.2001); Carter v. State, 738 N.E.2d 665, 677 (Ind.2000); Charlton v. State, 702 N.E.2d 1045, 1051 (Ind.1998).

Woodson contends now, as he did before the post-conviction court, that the trial court erred when it failed to inform the jury that to find him guilty of attempted murder as an accomplice, the jury had to find that he had the intent to kill the victims. Appellant's Brief at 19. At trial, counsel failed to object to the instructions and the issue was not raised on direct appeal. To avoid waiver, Woodson claims that this error was fundamental.

Our supreme court has clarified that the fundamental error exception to waiver is narrower in a post-conviction action than it is on direct appeal. Taylor v. State, 717 N.E.2d 90, 93-94 (Ind.1999). The Taylor court, quoting a previous opinion, noted:

While concerns over due process do sometimes merit invocation of a fundamental error exception to the contemporaneous objection rule on direct appeal, we think its availability as an exception to the waiver rule in post-conviction proceedings is generally limited to those circumstances we set forth in Bailey v. State, 472 N.E.2d 1260, 1263 (Ind.1985): "[D]eprivation of the Sixth Amendment right to effective assistance of counsel, or ... an issue demonstrably unavailable to the petitioner at the time of his [or her] trial and direct appeal."

Id. at 94 (quoting Canaan v. State, 683 N.E.2d 227, 235-36 n. 6 (Ind.1997), cert. denied, 524 U.S. 906, 118 S.Ct. 2064, 141 L.Ed.2d 141 (1998)). As explained below, Woodson's claim of fundamental error in the accomplice instruction was not available at the time of his trial or on direct appeal because Bethel v. State, 730 N.E.2d 1242 (Ind.2000) and its progeny, the cases supporting his argument, were yet to be decided. See Baxter v. State, 689 N.E.2d 1254, 1257 (Ind.Ct.App.1997) (failure to raise issue does not constitute waiver in post-conviction proceeding when the principle of law upon which it relies was not established at the time of direct appeal); Brown v. State, 587 N.E.2d 693, 698 (Ind. Ct.App.1992) (no waiver in post-conviction proceeding when case law relied upon was not published until after direct appeal).

At Woodson's trial, the final instructions to the jury on the attempted murder charge were as follows:

In this case the Defendants, Keith Woodson and Brian Chambers, are charged with the offense of attempted murder, a Class A felony, in Counts One and Two of the Information. The crime of "attempt" is defined by statute as follows: A person attempts to commit a crime when acting with the culpability required for the commission of the crime he engages in conduct that constitutes a substantial step toward the commission of the crime. The crime of "murder" is defined by statute as follows: A person who knowingly or intentionally kills another human being commits the crime of murder, a felony. To convict the Defendants, Keith Woodson and Brian Chambers, of the crime of attempted murder, a Class A felony, as charged in Count One [Count Two] of the Information, the State must have proven each of the following elements: The Defendant, one; acting with specific intent to murder another human being, two; engaged in a conduct, that is, shot at and against the person of Anthony Tigner [Roman Brown] by means of a deadly weapon, that is a handgun, and, three; all of this was a substantial step toward knowingly killing another human being, Anthony Tigner [Roman Brown]. If the State failed to prove each of these elements beyond a reasonable doubt you should find the Defendants not guilty. If the State did prove each of these elements beyond a reasonable doubt you should find the Defendants guilty of attempted murder, a Class A felony.

Petitioner's Exhibit B (Transcript of Final Instructions Read by the Court) at 4-5. As the bracketed language reveals, the trial court read this same instruction twice, once for Count One with Tigner as the victim and a second time for Count Two with Brown as the victim.

There was no dispute that Chambers was the shooter. Thus, in order to find Woodson guilty of attempted murder, the trial court gave the following instruction on accomplice liability:

The State of Indiana has charged the Defendant Keith Woodson as an accomplice. Under the law of Indiana a person who knowingly or intentionally aid[s], induces or causes another person to commit an offense commits that offense even if the other

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