*1 as class Rape Deviate Conduct and Criminal [Citations offense. tually included lesser to commit impossible A It is felonies. omitted]. having first commit- greater without offense at 566-67. Thus, Walker had notice ted the lesser. step to the case at first Applying the included offenses. all of the lesser elements bar, Rape and Devi Criminal it is clear Davenport class B felonies are inherent ate Conduct 1989),reh’g denied. Rape and Crim offenses ly lesser included A as class felonies. inal Conduct Deviate Ac- process no violation. There was due bar, between the at the difference the case cordingly, find no error. class B felonies focuses A felonies and class Judgment Affirmed. committed the offenses whether Walker on deadly weapon. Since with a while armed RUCKER, JJ., concur. HOFFMAN class Conduct as Rape Deviate Criminal by proving the can established B felonies than all the or less
same material elements felonies, they the A are
material elements Wright, supra.
inherently included. of
Having that the lesser determined included, inherently the trial
fenses were required to the evidence was examine
court was a serious determining whether there Indiana, Appellant- STATE deadly regarding evidentiary dispute Respondent, distinguished the weapon which element was offenses. There greater from the lesser evidentiary dispute as to whether Walker
an WINTERS, Appellee-Petitioner. Arnold with a offenses while armed committed the 49A02-9604-P C-248. weapon. Although testified No. deadly Jeannie flashlight, that Walker struck her Appeals of Indiana. Court both testi Clifford and Officer Jones Officer any were not made aware fied April shortly flashlight arresting af before Walker Although Walker acknowl ter the incident.
edged owning flashlight, he testified only with his hand and not
he struck Jeannie flashlight. jury could also con have with although Walker hit Jeannie
cluded rape flashlight, did not commit the he conduct armed
and criminal deviate while was deadly weapon. The evidence concluded, and that a could have conclude,
did that Walker committed the greater.
lesser included offenses and not the objection at trial was that
Walker’s since charged had him with A
the state class felo-
nies, the instructions for lesser of- included process rights.
fenses violated due He “basically adding that it was contended like ease_” charges Appel-
two to this more Brief, p.
lant 19. Walker had notice he subject to the lesser included offenses.
Rape and Deviate as class Criminal Conduct inherently
B felonies are included offenses *2 comply provisions of IC
failing to jury requests for infor- regarding 34-1-21-6 mation. and remand.
We reverse *3 AND PROCEDURAL HISTORY FACTS underlying convictions The facts Winters’ by supreme court in his set forth our were appeal: direct 23, 1986, July evening of Eu- “On the McCullough, who gene and Melvin Kee security guards, argument an were heard Jay Winters progress between brothers ap- officers and Donnie Winters. The and them what proached the two asked They responded that problem their was. it, worry about the officers should them, at which it was between time premises. them to leave the officers asked “Jay pushed and Kee then Officer Kee pushed Jay him hit with back. then Kee whereupon pistol Kee drew a his elbow appellant in pair and a of handcuffs and hit time, handcuffs. At that the face began Jay agreed and Donnie to leave and by away to walk followed the officers. However, arguing, and they again started They again intervened. Officer Kee away. to walk stopped arguing and started time, a brother appellant, At who was Donnie, Jay approached from be- to and officers, placed pistol hind the a shot which head and fired back of Kee’s McCullough pistol and drew killed Kee. Carter, Attorney Pamela General fired a shot. Fossum, Indiana, Deputy Priscilla Attor- J. McCullough grabbed “Jay and Donnie General, Appellant. ney Indianapolis, for him. In the by and disarmed the arms managed Carpenter, McCullough K. Public Defender of Susan struggle, Indiana, Stevens, Deputy Jay Janice L. Public pistol. of his jamto the mechanism Defender, Indianapolis, Appellee. pis- gained possession of the disabled then McCullough attempted it at
tol and
to fire
Jay again
but was unable to do so.
OPINION
McCullough’s arms while
grabbed
one
KIRSCH, Judge.
Appellant
other arm.
Donnie held the
McCullough and shot
up
then walked
to
appeals
granting
The
of Indiana
State
McCullough
him in
fell back-
the face.
post-conviction
relief to Arnold Winters.
attempted
a second
to draw
ward. He
We restate the sole issue for review as
carrying strapped to
pistol which
he
post-conviction
whether the
court erroneous-
Appellant then fired another
his ankle.
ly vacated Winters’ convictions because of its
McCullough’s buttocks.
shot into
determination that
trial court
committed
appellant
“McCullough
up
stood
and
fundamental
communica-
error
ex
Jay
Jay, and
shot
pistol
jury during
tions with the
and
handed
deliberations
McCullough in the back.
fell
McKnight
James R.
McCullough
ground,
Jay
up
and
him
walked
Foreman”
groin.
him in
and shot
When McCul-
lough
struggle, Jay
Again,
Record at 109.
judge
continued
observed
neither the
nor
yet.”
that: “[He] ain’t dead
One of the
attorneys
received notice of the
brothers
him to shoot
then advised
him in
request. The Record
does
indicate
the head
had shot
like
the other
any response
whether there was
to the re-
Jay
up McCullough
officer.
walked
and
quest.2
convicted Winters of mur-
fired,
just
McCullough
as he
moved his
der,
murder,
robbery.
Our
head to one side
the bullet missed.
supreme court affirmed those convictions on
apparently
by Jay
This
was not observed
Winters,
direct
Foreman” Record at 108.1 judge Neither the nor appeals granting When the State attorneys received notice of the note. In- relief, post-conviction the standard of re stead, the bailiff request by denied the applicable negative judgments view to does writing “no” on the bottom of the noted and Lime, apply. 601, State v. initialing it. Record at 108. tram, (1994). (Ind.Ct.App.1993), 603 denied jury sent a request second which read: We review under the standard noted in Judge 52(A).
“To: Alsip Ind.Trial Rule 6/10/87 Under that stan dard, Can this jury we the court will not findings obtain a set aside the written definition aiding judgment erroneous, and or abetting portion clearly unless of the with Law applys [sic ] as it regard [sic to subject given ] due ability to the trial court’s case. 52(A). judge credibility. witness T.R. 1. References represent made to the "Record” 2. The Record also does not indicated who wrote prepared record pm” Winters' direct "7:35 on the bottom of the note. See Record at 109.
409 of, presence or after notice given in the AND DECISION DISCUSSION to, attorneys.” parties or their bailiffs commu- that the asserts The State jury did not amount nication with mandatory proce- forth a This statute sets disagree. We error. reversible court to follow when the dure for the any part testimony and disagrees as to engages in ex a court When as to jury wishes be informed when the jury, an inference of communications If any point of law in the case. either arises, creating pre a rebuttable prejudice arises, notify trial court must situation has been committed. sumption error attorneys provide parties or their State, 524, N.E.2d 526 v. 656 Madden court. necessary open information This trans. denied. rebuttable Ct.App.1995), also exists cases presumption of error respect to manifestation of With communicates with the a bailiff when reviewing in jury disagreement, courts have presence. Driver defendant’s outside usually terpreted provision apply State, (Ind.Ct.App. N.E.2d v. open disagreement when there is obvious error, 1992), trans. denied. To be reversible See, among jury e.g., members. Survance prejudice must a defen bailiffs conduct (Ind.1984) N.E.2d 1082-83 rights. dant’s substantial Bartruff jury request portion (finding hear 110,120 (Ind.Ct.App.1988), trans. testimony disagreement); did manifest *5 (1989). usually Prejudicial conduct denied State, 1200, Grayson 593 N.E.2d 1205-06 v. ques answering legal a amounts to the bailiff (finding jury’s request, (Ind.Ct.App.1992) to providing additional instructions tion or “ Grayson’s Mr. testimo ‘We need to review 344, State, jury. 266 Ind. Wallace v. the ” ny lawyer[,]’ did not manifest dis from his (1977); 346-7, 956, Harri 363 N.E.2d 957 State, 948, agreement); Dowdy 672 N.E.2d v. (Ind.Ct. State, 642, v. 575 N.E.2d 649-50 son jury’s (Ind.Ct.App.1996) (finding re 953-54 1032, State, App.1991); v. 453 N.E.2d Stader testimony of Mr. quest, to “Need review State, (Ind.Ct.App.1983); v. 154 1035 Laine disagreement). Cooleyt,]” did not manifest 81, 85-86, 141, Ind.App. 143-44 289 N.E.2d however, note, juries may manifest that We (1972). testimony by requesting disagreement about respect parte With to ex communications State, 555 N.E.2d to it. Brownlee v. rehear juries, reviewing between court officials and Indeed, 505, (Ind.Ct.App.1990). 508 courts have held that where the ex agreement in question why jury a that was only is a of a communication refusal testimony request to at issue would as to the request, presumption the of harm to the de it. rehear See, e.g., was rebutted. Martin v. fendant Brownlee, prosecut- was the defendant (Ind.1989); State, 493, 535 N.E.2d 497 Mar robbery. and armed for murder ed (Ind. State, 699, 709 sillett v. 495 N.E.2d testimony of on the His alibi defense rested State, 1986); 950, Kiner v. 643 N.E.2d 955 deliberations, jury During the girlfriend. Here, (Ind.Ct.App.1994). simply the bailiff following to the court: the note sent jury’s requests. na refused the Due clearly # 12 could not “jurors #11 and jury’s requests, ture of the we can parts Stephen of hear Brownlee’s certain say presump that the State rebutted the testimony, jury girlfriend’s taped re- tion of harm to Winters. quests again girlfriend’s tape hear the At issue is trial here court’s failure to testimony.” recorded follow the mandate IC 34-1-21-6 which provides: 555 at 507. This court N.E.2d determined ambiguous; that it jury the note could have
“After the [sic ] have retired delib- eration, jurors 11 and 12 simply meant that disagreement if a did not there is between testimony, jurors or that any part testimony, them as to if hear the 11 of the or and 12 something any heard different from point desire to be as to informed the other case, arising jurors gave of law in which rise they may disagreement. re- to a quest importance the officer to into Id. at 508. Given the conduct them of the court, testimony where the and the fact required information shall that Brownlee had no 410 clarification, rights a it amounted to a request we held defendant
chance to process. Lacey to inform failure Brownlee of denial fundamental due v. trial court’s State, 1299, jury’s request (Ind.Ct.App. was reversible error. 670 1302 N.E.2d 1996). right While of a constitutional denial Here, jury’s request is similar to error, may fundamental demonstrate by jury Brownlee. The made one automatically conclusion follow. does not “only requested portion first to hear a note State, N.E.2d Foster during subject recording made tape 1985); Johnson v. (Melvin Mccullough) ].” Record at [sic case— discussing (Ind.Ct.App.1991). When Brownlee, we find that this As in re fundamental the difference bétween error quest represent juror could ambiguous; it is error, court stated: and reversible only disagreement concerning portion testimony, repre or it McCullough’s could mere occurred “The fact that error juror portion inability sent to hear a of the that it was prejudicial will suffice.... face, fairly testimony. its the note could On must be one such Rather[] the error interpreted disagreement be from possibly have could not had defendant McCullough’s testimony. concerning McCul trial court is or such that this fair left lough, only surviving victim in as the the verdict conviction or encounter between himself the three clearly wrong sentence is or such dubi- brothers, Winters was the State’s wit chief permit validity justice ous cannot it Having request summarily ness. denied stand.” right bailiff violated Winters’ under (Ind.Ct. 171, 174 Stewart given IC notice 34-1-21-6 be App.1991), trans. denied. request opportunity and the to have the testi supreme interpreted Our court has IC 34- mony replayed open court. 1-21-6 as conferring on a defendant a sub- 34-1-21-6 trig- The mandate IC is also right present stantial when the *6 gered by questions concerning any point interrupts its deliberations and asks to re- Here, arising of law from the case. the State, 644 view evidence. Powell v. N.E.2d jury sought second note from the a “written (Ind.1994). Powell, 855, 857-58 In aiding abetting definition of the and portion supreme the court referred to “substantial of applys Law as it [sic] the to this [sic] right” within of Ind.Trial Rule the context subject case.” Record at 109. Winters as- addition, court, Id. at 858. this In neither serted at trial. Although self-defense the supreme nor our that court has held violation specifically trial court did not instruct of this statute to fundamental error amounts jury concerning aiding abetting and or ac- per Morgan se. But cf. complice liability, all three brothers were (Ind.1989) 143, (noting 149 in dicta that ex charged together and tried on counts of mur- may provide a basis communication der, murder, robbery. There- error). finding fundamental Under facts fore, jury’s question because the in 2Note ease, per- of did not the bailiffs actions question of concerned law that respond mit the trial to the court reasonably interpreted from the notes, reasonably one of which demonstrated case, facts of the bailiffs actions violated disagreement testimony, concerning and the mandatory provisions. the statute’s sought other of which clarification as to a Although find we the failure to fol legal rights prejudiced issue. This Winters’ low the mandate of IC 34-1-21-6 to be re to a fair trial and constituted reversible er- error, case, versible under the facts of this ror, yet fell short of the blatant violation of we disagree with the trial court’s conclusion principles basic that constitutes fundamental error was fundamental. A criminal error. right present defendant has at all stages proceeding of a criminal requiring the The distinction draw we between re CONST, presence jury. U.S. important amend. versible and is fundamental error CONST, VI; IND. art. Sec. 13. Funda of procedural posture because of mental prejudicial error is error so to the case. Winters’ convictions were affirmed on
4H counsel, but did not ad- concerning his trial petition for response In appeal. direct appellate relief, performance of Winters’ claimed dress the the State post-conviction jury communica- our here is based counsel. Because decision the issue Winters waived Brownlee, it on direct failing part to raise our which on decision tion available to Winters issue was at of Winters’ Because the had not been decided the time only way to avoid waiv- appeal, say appeal, on direct cannot as a matter direct error or ineffec- to claim fundamental er was appellate counsel was ineffective. law failing appellate counsel for tive assistance post-convic- Consequently, we remand to the disposition our con- With to raise the issue. tion court for the determination of whether error, Winters must cerning fundamental appellate performance of Winters’ coun- appellate assistance of rely on ineffective was deficient. sel n counsel. finding of funda- We reverse the court’s establishing in standard for respect to bailiffs con- mental error with appellate is counsel effective assistance for a duct and remand determination trial applied counsel. identical appel- of Winters’ performance whether the Robinson v. was deficient. Because late counsel To Ct.App.1994), trans. denied. demonstrate post-conviction challenge not State does ineffectiveness, claimant must es convictions for vacation of Winters’ court’s performance counsel’s fell below robbery, finding tablish that or its attempted murder professionally competent range of a wide effective assistance that Winters received representation and that such representation counsel, are trial those determinations trial. likely prejudiced the outcome by this affected decision. State, 638 N.E.2d Hernandez v. and remanded. Reversed (Ind.Ct.App.1994), trans. denied. at so, must tempting to do the claimant over RUCKER, J., concurs. evidence, come, convincing by strong and is effective. Id. presumption FRIEDLANDER, J., counsel in result concurs speculate on what would This court will opinion. separate approach. have been the most successful FRIEDLANDER, concurring in Judge, poor strategy, Factors such as isolated bad result. tactics, necessarily inexperience do not or Douglas respects majority amount to assistance. in all agree ineffective I *7 (Ind.1996). State, 1153, 1154 concerning first except for discussion mandatory jury trigger note. In order Here, determined that the vi we 34-1-21-6, jury request a § provisions of IC prejudicial 34-1-21-6 was error. olation IC “a dis- testimony must from stem hear prong also satisfies the second Such error any part of as to agreement [jurors] between counsel; the test for ineffective assistance majority that the testimony.” I believe probability of that was a reasonable there may requirement concluding errs in affecting the outcome of Win counsel’s error instant case. in the have been met appeal. ters’ order to establish ineffective stated, assistance, however, jury, we the prove jury Winters must also note “Can The tape recording appellate only portion a performance counsel’s listen to failing jury during subject case”. Record at deficient for to raise the issue of made communication on no indication on the face of the direct Counsel’s 108. There is performance from request is considered deficient it stemmed dis- when note objective majority, an agreement among jurors. falls below standard of The reason State, 619, however, ambiguous v. ableness. Malone 660 N.E.2d the note in this deems (Ind.Ct.App.1996), regard, request may trans. denied. Rea and concludes that the by prevail fairly interpreted sonableness is be measured from ing professional applied par disagreement. norms as I that this believe conclusion accepts premise post- only ticular facts of is if one the case. The viable testimony necessarily any request conviction court claim to hear addressed Winters’ To the ex- disagreement. from stems (“In- this view majority embraces tent
deed, why jury that was question testimony at issue would
agreement as 409), it”, disagree. I Op. at
request rehear § of IC 34-1-21-6 applicable provision “[ujnless jury manifests apply
does not testimony.” Dowdy
disagreement about (Ind.Ct.App. 672 N.E.2d
1996) (quoting Grayson v.
1200, 1206 I (Ind.Ct.App.1992)). believe majority consti expressed
the view judicial impermissible revision
tutes an interpretation ignores the an
statute. Such clearly stat precedent stated
condition (manifest disagreement) and instead
ute man the statute into one whose
transforms triggered whenever
datory provisions are request is made. opinion majority’s in all
I concur with the respects.
other CENTER,
DeKALB CHIROPRACTIC
INC., Appellant-Defendant, INNOVATION,
BIO-TESTING
INC., Appellee-Plaintiff.
No. 17A05-9605-CV-208. Appeals
Court of of Indiana.
April
Rehearing Denied June