Lead Opinion
OPINION
Case Summary
Mаrio McCann appeals the denial of his petition for post-conviction relief. We affirm in part, reverse in part, and remand. Issues
We restate McCann's issues as follows:
I. Whether trial counsel was ineffective in failing to object to the trial court's instruction on attempted murder and tender a correct instruction; and
II. Whether appellate counsel was ineffective in failing to raise a double jeopardy argument regarding McCann's convictions and sentences for attempted murder and class A felony burglary.
Facts and Procedural History
We recite the facts most favorable to the judgment as outlined in McCann's direct appeal to this Court:
On the evening of August 2, 1997, McCann approached and talked to AL. ("A.L.") and Anthony Dozier ("Dozier") at their home at 38th Street and College Avenue in Indianapolis. After McCann left, A.L. went upstairs and fell asleep in her bed with the television on. When AL. awoke McCann was in her bedroom. McCann tried to pull her covers off and told her he had a gun that he would use if she was not quiet. Additionally, McCann touched A.L.'s breasts and stated "shut up, it [won't] take very long, and then [I'll] leave [you] alone." AL. viewed McCann's face for approximately ten minutes. A.L.'s boyfriend, Dozier, then entered the bedroom, saw McCann, and began to struggle with McCann. During this struggle, McCann shot Dozier in the chest. MeCann then left through the bedroom window. Dozier viewed McCann's face for approximately five minutes. An upstairs neighbor called the police.
Detective Lawrence Cаhill ("Detective Cahill"), of the Indianapolis Police Department, responded to the police radio call, and conducted the investigation of the crime. AL. described MeCann as a young black male approximately five feet ten inches in height, and other residents of the apartment and neighbors indicated to Detective Cahill that the suspect's first name was Mario. From a police database, Detective Cahill printed*908 out photographs comprised of black males named Mario. Then, after eliminating pictures from suspects that were in the database more than once and removing names, Detective Cahill presented a thirty-two-picture array to A.L. and Dozier. Two of the pictures within this array were of McCann. Both Dozier and AL. identified McCann as the person who attempted to rape A.L. and shot Dozier. Thereafter, McCann was arrested and charged for Attempted Murder, Burglary, and Attempted Rape.
Prior to trial, McCann moved to suppress A.L.'s and Dozier's in-court identifications of him. McCann argued that the out of court identification procedures were unduly suggestive. The trial court denied this motion. During trial, McCann renewed his objections to A.L.'s and Dozier's in-court identifications. These objections were denied.
[On February 9, 1999,] McCann was found guilty on all three charged of fenses. [At a sentencing hearing on March 8, 1999, the] trial court cited four aggravating circumstancеs and ho mitigating circumstances. The trial court sentenced McCann to fifty years for each offense, with the Attempted Murder conviction and Burglary conviction to run consecutively and the Attempted Rape conviction to run concurrently. McCann was sentenced to a total executed sentence of one hundred years.
McCann v. State,
On September 18, 2002, McCann filed pro se an amended petition for post-conviction relief. The State filed its answer on October 15, 2002. On August 29, 2005, McCann filed by counsel a motion to amend his petition, which the post-convietion court granted three days later. The State filed its response on September 7, 2005. On October 4, 2005, the post-convietion court held a hearing on McCann's petition. On January 31, 2006, the post-conviction court denied MeCann's petition. McCann now appeals.
Discussion and Decision
Standard of Review
In addressing MceCann's allegations of error, we employ the following standard of review:
The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderanсe of the evidence. Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. On review, we will not reverse the judgment unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court. Further, the post-conviction court in this case entered findings of fact and conclusions thereon in accordance with Indiana Post-Convietion Rule 1(6). A post-conviction court's findings and judgment will be reversed only upon a showing of clear error-that which leaves us with a definite and firm conviction that a mistake hаs been made. In this review, we accept findings of fact unless clearly erroneous, but we accord no deference to conclusions of law. The post-conviction court is the*909 sole judge of the weight of the evidence and the credibility of witnesses.
Walker v. State,
I. Attempted Murder Instruction
McCann first contends that trial counsel was ineffective in failing to object to the trial court's attempted murder instruction and tender a correct instruction.
A defendant claiming a violation of the right to effective assistance of counsel must establish the two components set forth in Strickland v. Washington,466 U.S. 668 ,104 S.Ct. 2052 ,80 L.Ed.2d 674 (1984); accord Williams v. Taylor,529 U.S. 362 , 390-91,120 S.Ct. 1495 ,146 L.Ed.2d 389 (2000). First, the defеndant must show that counsel's performance was deficient. Strickland,466 U.S. at 687 ,104 S.Ct. 2052 . This requires a showing that counsel's representation fell below an objective standard of reasonableness, id. at 688,104 S.Ct. 2052 , and that the errors were so serious that they resulted in a denial of the right to counsel guaranteed the defendant by the Sixth Amendment, id. at 687,104 S.Ct. 2052 . Second, the defendant must show that the deficient performance prejudiced the defense. Id. To establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694,104 S.Ct. 2052 . A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
Counsel is afforded considerable discretion in choosing strategy and tactics, and we will accord those decisions deference. Id. at 689,104 S.Ct. 2052 . A strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. at 690,104 S.Ct. 2052 . The Strickland Court recognized that even the finest, most experienced criminal defense attorneys may not agree on the ideal strategy or the most effective way to represent a client. Id. at 689,104 S.Ct. 2052 . Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective. The two prongs of the Strickland test are separate and independent inquiries. Thus, if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice that course should be followed.
Timberlake v. State,
Without objection, the trial court gave the following instruction to the jury:
Attempt Murder
A person attempts to commit a crime when he knowingly engages in conduct that constitutes a substantial step toward the commission of the crime.
The crime of Murder is defined by statute as follows:
*910 A person who knowingly kills another human being commits Murder. The elements of this offense are that the defendant must:
1. Intentionally
2. Engage in conduct that constituted a substantial step toward the commission of
3. Knowingly or intentionally killing another human being
The defendant must have had the specific intent to commit Murder in order to be found guilty of Attempt Murder, a Class A Felony. Intent to kill may be inferred from the use of a deadly weapon in a manner reasonably calculated to cause death.
Trial Record at 126 (capitalization altered).
"The Indiana Supreme Court has recognized the special need to instruct juries precisely as to the correct level of culpability for attempted murder because of the stringent penalties for that charge and the inherent ambiguity often involved in its proof." Specht v. State,
An instruction that purports to set forth the elements required for an attempted murder conviction must ... specifically state that the jury is required to find that the defendant intended to kill the victim. Instructing the jury with a list of elements which suggests that it may convict on a lesser mens rea, such as "knowingly," constitutes error.
Beasley v. State,
We disagree. Although McCann's counsel might well have performed deficiently in failing to object to the attempted murder instruction in light of the then-existing precedent on the subject, we conclude that McCann has not demonstrated that he suffered prejudice as a result. In other words, he has not shown that there is a reasonable probability that, but for counsel's failure to object to the instruction and tender a correct one, the result of his trial would have been different. See Timber lake,
Moreover, as the attempted murder instruction suggests, "[the intent to kill may be inferred from the use of a deadly weapon in a manner likely to cause death or serious bodily injury." Webster v. State,
To be sure, the use of a deadly weapon in a manner likely to cause death or serious bodily injury is not, in and of itself, equivalent to a conscious objective to kill. The use of a deadly weapon in such a manner may very well establish only that the defendant acted with an awareness of a high probability of killing someone, ie., knowingly. See Storey v. State (1990) Ind.,552 N.E.2d 477 , 480 ("The use of a deadly weapon in a manner likely to cause death or great bodily harm permits the jury to infer the defendant's knowledge that he was killing another.") Therefore, when it is said, as our Supreme Court did in Bethel v. Stute (2000) Ind.,730 N.E.2d 1242 , 1245, that the intent to commit attempted murder may be inferred from the deliberate use of a deadly weapon in a manner likely to cause death or serious injury, it may only be read as holding that the trier of fact in that case could infer a conscious objective to kill; otherwise it would run counter to the Spradlin rule. Subjective intent is difficult to prove, and the court may have been saying that as an evidentiary matter, the trier of fact may infer that the defendant acted with the conscious objective to kill from the circumstances surrounding the deliberate use of a deadly weapon in a manner likely to cause death or serious bodily injury; however, the use of a deadly weapon in such a manner does not necessarily permit such a conclusion.
Id. at 756. That said, we note that when Dozier found McCann lying in bed with AL., he jumped on McCann, threw a few punches, and grabbed his arm. At that point, Dozier was "face to face" with the "significantly smaller" McCann
II. Double Jeopardy
Next, McCann alleges ineffective assistance of counsel based on a failure to raise a double jeopardy issue regarding his
We need not specifically determine whether MceCanu's trial counsel was ineffective in failing to raise the issue at sentencing; indeed, McCann appears to retreat from this claim in his reply brief and focuses solely on the effectiveness оf his appellate counsel. It is worth noting, however, that Indiana double jeopardy analysis was in a state of transition at the time of McCann's trial. In Games v. State,
Our supreme court answered that question after McCann was sentenced but before his appeal was briefed. In Richard son v. State,
Chapman contends, correctly in light of our recent decision in [Richardson], that his robbery conviction cannot be elevated by the same serious bodily injury (death) that formed the basis of his murder conviction. Here, the only injury was the fatal wound from a single gunshot. As a result, the same evidence used by the jury to establish the essential elements of murder was also included among the evidence establishing the essential elements of robbery as a Class A felony, and the two cannot stand. Accordingly, we remand this case to the trial court with instructions to reduce the robbery conviction to a Class B felony.
Id. (footnote omitted).
The State contends that McCann's reliance on Chapman is misplaced, in that attempted murder (unlike murder) requires no proof of injury and that class A felony burglary requires no proof of the mechanism that caused the injury. While Chapman may not be directly on point, it clearly echoes the following principles
The legislature has provided that the punishment classification of certain crimes may be enhanced if the behavior which constitutes the сrime is accompanied by certain specified additional behavior or causes certain specified additional harm. In situations where a defendant has been convicted of one crime for engaging in the specified additional behavior or causing the specified additional harm, that behavior or harm cannot also be used as an enhancement of a separate crime; either the enhancement or the separate crime is vacated. Recent examples include Kingery v. State,659 N.E.2d 490 , 496 (Ind.1995), and Moore v. State,652 N.E.2d 53 , 60 (Ind.1995), both reducing a Class A enhancement to a robbery conviction because the very same killing that was the basis of the enhancement was also the basis of a murder conviction.
Id. at 56 (Sullivan, J., concurring) (footnote omitted).
"To prevail on a claim of ineffective assistance of appellate counsel, the defendant must show that appellate counsel was deficient in his performance and that the deficiency resulted in prejudice." Gray v. State,
When a petitioner claims the denial of effective assistance of appellate counsel because counsel did not raise issues the petitioner argues should have been raised, reviewing cоurts should be particularly deferential to counsel's strategic decision to exclude certain issues in favor of others, unless such a decision was unquestionably unreasonable. But this does not end our analysis. Even if we determine that counsel's choice of issues was not reasonable, a petitioner must demonstrate a reasonable probability that the outcome of the direct appeal would have been different in order to prevail.
Taylor v. State,
On appeal, McCann's cоunsel raised the following four issues: (1) whether the photo array shown to AL. and Dozier was impermissibly suggestive and whether their in-court identifications of him as the perpetrator were improper; (2) whether the prosecutor committed misconduct in closing argument; (8) whether the trial court properly instructed the jury regard
Under these cireumstances, we conclude that the double jeopardy issue is significant and obvious from the face of the record and is clearly stronger than the issues raised by McCann's appellate counsel. The question then becomes whether there is a reasonable probability that the outcome of McCann's appeal would have been different had the double jeopardy issue been raised. We believe so.
We must now determine the proper relief in this case.
When two convictions are found to contravene double jeopardy principles, a reviewing court may remedy the violation by reducing either conviction to a less serious form of the same offense if doing so will eliminate the violation. In the alternative, a reviewing court may vacate one of the convictions to eliminate a double jeopardy violation. In making that determination, we must be mindful of the penal consequences that the trial court found appropriate.
Sanders v. State,
Affirmed in part, reversed in part, and remanded.
Notes
. In addressing the propriety of the attempted murder instruction, the post-conviction court stated that McCann "did not raise this issue on direct appeal. Since the issue was available then, it is now waived." Appellant's App. at 113. While it is true that McCann waived any freestanding claim of error by failing to raise the issue on direct appeal, he may nevertheless challenge the propriety of the instruction in the context of an ineffective assistance of counsel claim. See Williamson v. State,
. We note that prior to McCann's trial, our supreme court stated that "the tender of a proposed alternative instruction is not necessarily required to preserve the claim of error." Scisney v. State,
. Although McCann's counsel raised intent as an issue at trial, McCann himsel{ twice interrupted the proceedings to assert that someone else had committed the charged crimes. See, eg., Trial Record at 371 (during A.L.'s testimony: 'Hey, I feel sympathy but it wasn't me. I feel sympathy, it wasn't me."); id. at
. The 6'1" Dozier weighed 230 pounds at the time of the shooting. Trial Record at 457. A.L. estimated McCann's size at 510" or 511" and 160 pounds. Id. at 364.
. The Fifth Amendment to the U.S. Constitution provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb{.]" Article 1, Section 14 of the Indiana Constitution provides that "[nJo person shall be put in jeopardy twice for the same offense."
. We agree with McCann that this charge "amounts to an allegation of attempted felony murder, an offеnse which does not exist in Indiana law." Appellant's Br. at 7; see Coleman v. State,
. "A person who breaks and enters the building or structure of another person, with intent to commit a felony in it, commits burglary, a Class C felony." Ind.Code § 35-43-2-1. The offense is a class B {felony if it is committed while armed with a deadly weapon or if the building or structure is a dwelling. Id. The offense is a class A felony if it results in bodily injury or serious bodily injury to any person other than a defendant. Id.
. The post-conviction court found this issue waived because McCann had failed to raise it on direct appeal. We disagree with this finding for the reasons given in footnote 1, supra. The post-conviction court also found the issue to be res judicata because the appropriateness of the sentence had been addressed on direct appeal. We note that the constitutional issue of double jeopardy was not decided on direct appeal and that, in any event, McCann would not be precluded from raising the double jeopardy issue in the context of an ineffective assistance of counsel claim. See Williamson,
. Compare Ind.Code §§ 35-41-5-1 (attempt) and 35-42-1-1 (murder) with Ind.Code § 35-43-2-1 (burglary).
. In the companion case of Taylor v. State,
. In an affidavit, McCann's appellate counsel stated that she "reviewed" Richardson and Chapman but "chose not to raise a double jeopardy claim" because she "believed the issues [she] chose to raise were stronger claims." Pet. Exh. B.
. See also Davis v. State,
. When McCann was sentenced, controlling precedent held that "(violations of a defendant's double jeopardy rights constitute fundamental error." Hobson v. State,
. See Trial Record at 609-10 ("'The case involves a home invasion of a residence for the purpose of committing the crime of rape. That the defendant attempted the raрe of [A.L.] in this matter while she was pregnant. And that these offenses or this series of acts involves multiple victims; that is, one, [A.L.] is a victim of attempt rape; secondly, when her husband or boyfriend came to her aide [sic] he was shot in his efforts to by the defendant in his efforts to save [A.L.] from any further assault by the defendant. The court finds no mitigating factors.").
. See Ind.Code § 35-43-2-1 (stating that burglary is a class B {elony if it is commitied while armed with a deadly weapon or if the building or structure is a dwelling).
Concurrence Opinion
concurring in result.
I concur in the result reached by the majority, but I respectfully disagree with its reasoning as to why the attempted murder instruction given at trial was sufficient to withstand the prejudice prong of the Strickland test.
I agree that the attempted murder instruction here violates the rule set forth in Spradlin,
However, the use of an instruction containing Spradlin error is not per se prejudicial. Our Supreme Court has noted that "there have been cases where, despite clear Spradlin error, we did not vacate an attempted murder conviction because (1) the intent of the perpetrator was not a central issue at trial; (i) the instructions as a whole sufficiently suggested the requirement of intent to kill; or (iii) both." Williams v. State,
This seems circular to me. If specific intent is a key issue at trial, I believe it is error for the trial court not to instruct the jury that the defendant must have the specific intent to kill before he may be found guilty of attempted murder. But our analysis does not end there. Under Williams, a Spradlin error is not per se prejudicial if the instructions as a whole sufficiently suggest the requirement of intent to kill. Here, the jury was adequately instructed on the mens rea of attempted murder.
The Indiana Supreme Court evaluated a jury instruction very similar to the one tendered at McCann's trial in Yerden v. State,
A Person attempts to commit a crime when he knowingly or intentionally 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 Murder.
To convict the Defendant of Attempt Murder, in this case, the State must have proved each of the following elements:
1. The Defendant knowingly
2. Engaged in conduct that constituted a substantial step toward the commission of
3. Knowingly killing another human being.
The Defendant must have had the specific intent to commit Murder in order to be found guilty of Attempt Murder. Intent to kill may be inferred from the use of a deadly weapon in a manner reasonably calculated to cause death.
Id. at 1285. The Supreme Court held that although erroneous, "the instruction, on the whоle, adequately informed the jury that Yerden must have intended to kill Bergstresser." Id. at 1286. Similar to this case, the instruction in Yerden stated that the defendant "must have had specific intent to commit murder." Id. Also, both instructions indicated that intent to kill may be inferred from the use of a deadly weapon in a manner reasonably calculated to cause death. Finally, I find further analogy between these two cases because the Yerden Court cited no other instructions given at Yerden's trial, nor any charging information or clarifying arguments by counsel, which might have furthered the jury's understanding of the mens rea required for attempted murder. Following Yerden, then, McCann cannot make a showing of prejudice sufficient to satisfy the Strickland test as to ineffective assistance of counsel. For that reason, I concur in the result reached by the majority.