ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUSAN K. CARPENTER STEVE CARTER
Public Defender of Indiana Attorney General of Indiana
BRIAN EISENMAN RICHARD C. WEBSTER
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
COURT OF APPEALS OF INDIANA
MARSHALL RANDOLPH, )
vs. ) No. 45A04-0307-PC-376
STATE OF INDIANA, )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Salvador Vasquez, Judge
February 10, 2004
OPINION - FOR PUBLICATION
Marshall Randolph was convicted following a jury trial of murder. He filed
a Petition for Post-Conviction Relief which the post-conviction court denied. He now
appeals. We affirm.
Randolph raises three issues for our review which we consolidate and restate as:
Whether the trial court properly instructed the jury regarding self-defense; and
Whether Randolph received effective assistance of trial and appellate counsel.Facts and Procedural History
Randolph was convicted by a jury of murder and his conviction was affirmed
by our supreme court. Randolph v. State, 755 N.E.2d 572
(Ind. 2001). The facts of the case were outlined as follows:
The essential facts of this tragic and senseless killing are as follows.
In the evening hours of August 1, 1998, Randolph approached a group of
young men that included Hicks and inquired which one of the group had
been messing with his sister. The record shows that earlier in the
day Marcus Holloway, a member of the group, allegedly made an untoward remark
directed at Randolphs sister. After an exchange of words between Holloway and
Randolph, the matter seemed to have been closed when Randolph said, You dont
mess with my sister and my sister wont mess with you. However,
Randolph continued his belligerence exclaiming, Next time I come out here. It is
not going to be talking. At that point Hicks intervened and asked
why Randolph had come into his neighborhood starting trouble and that no one
had bothered Randolphs sister. The two then exchanged words, and Randolph produced
a handgun pointing it at Hicks. When Hicks raised his hands saying,
Do what you got to do, Randolph fired three times. Hicks died
as a result of a gunshot wound to the chest. Randolph was
eventually arrested and charged with murder. After a jury trial he was
convicted as charged, and the trial court sentenced him to fifty-two years imprisonment.
Id. at 574. Randolph sought post-conviction relief alleging that the trial court
gave erroneous instructions to the jury and that he received ineffective assistance of
both trial and appellate counsel. The post-conviction court denied Randolphs petition for
post-conviction relief and this appeal ensued.
Discussion and Decision
Randolphs Petition for Post-Conviction Relief
Under the rules of post-conviction relief, the petitioner must establish the grounds for
relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1, §5.
A petitioner who has been denied post-conviction relief appeals from a negative
judgment and he must convince the appellate court that the evidence as a
whole leads unerringly and unmistakably to a decision opposite that reached by the
post-conviction court. Hyppolite v. State, 774 N.E.2d 584, 599 (Ind. Ct. App.
2002), trans. denied. In other words, we will disturb a post-conviction courts
decision as being contrary to law only where the evidence is without conflict
and leads but to one conclusion and the post-conviction court has reached the
opposite conclusion. Id. (quoting 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)
When reviewing the post-conviction courts decisions, we will not reweigh the evidence nor
will we judge the credibility of the witnesses. Lineberry v. State, 747
N.E.2d 1151, 1154 (Ind. Ct. App. 2001). Rather, we consider only the
evidence that supports the decision of the post-conviction court together with any reasonable
inferences drawn therefrom. Dickenson v. State, 732 N.E.2d 238, 241 (Ind. Ct.
App. 2000). Also, we accept the post-conviction courts findings of fact unless
clearly erroneous. Dewitt v. State, 755 N.E.2d 167, 170 (Ind. 2001).
II. Jury Instructions
A. Standard of Review
Instruction of the jury is within the discretion of the trial court and
is reviewed only for an abuse of discretion. Bayes v. State, 791
N.E.2d 263, 264 (Ind. Ct. App. 2003), trans. denied. This well-settled standard
by which we review challenges to jury instructions affords great deference to the
trial court. Id. Further, we note that any error in giving
jury instructions is subject to a harmless error analysis. Id.
B. Jury Instructions on Self-Defense
The trial court gave the following instructions regarding self-defense to the jury:
FINAL INSTRUCTION NUMBER 13
The defense of self-defense is defined by law in Indiana as follows:
A person is justified in using reasonable force against another person to protect
himself or a third person from what he reasonably believes to be the
eminent [sic] use of unlawful force. However, a person is justified in
using deadly force only if he reasonably believes that that force is necessary
to prevent serious bodily injury to himself or a third person or the
commission of a forcible felony. No person in this state shall be
placed in legal jeopardy of any kind whatsoever for protecting himself by reasonable
means necessary. However, a person is not justified in using force if:
He is committing or is escaping after, the commission of a crime;
he provokes unlawful action by another person, with intent to cause bodily injury
to the other person; or he has entered into combat with another person
or is the initial aggressor, unless he withdraws from that encounter and communicates
to the other person his intent to do so or and [sic] the
other person nevertheless continues or threatens to continue unlawful action.
The State has the burden of disproving the defense of self-defense beyond a
reasonable doubt. Before you may find the defendant guilty of the crime
charged, or a lesser offense, you must find beyond a reasonable doubt that
the defendant was not acting in self-defense.
FINAL INSTRUCTION NUMBER 14
It is well settled that a defendant need only raise the issue of
self-defense so that a reasonable doubt exists. The State then carries the
burden of negating the presence of one or more of the necessary elements
that the defendant was without fault;
was in a place where he had a right to be in relation
to his alleged assailant; or,
acted in reasonable fear of death or great bodily harm.
The questions concerning the existence of the eminent [sic] use of unlawful force,
the necessity or apparent necessity of using force, as well as the amount
of force necessary to repel an attack, can be determined only from the
standpoint of the defendant at the time and under all existing circumstances.
In the exercise of self-defense, the defendant ordinarily is required to act immediately,
without time to deliberate and investigate. In such circumstances, the danger which
exists only in appearance is to him as real and eminent [sic] as
if it were actual.
The important inquiry is: Was the danger actual to the defendants comprehension?
It is not whether an injury was actually intended by the assailant
but whether it presented a danger from the defendants point of view.
Appellants Appendix at 77-80 (emphasis added). Randolph contends that Instruction number thirteen
was improper because an individual who is in the process of committing a
crime is not absolutely precluded from claiming self-defense. He contends that evidence
was presented that he did not have a license for the gun he
was carrying. Thus, he argues that the jury could have been led
to believe that, because he was committing a crime by carrying a weapon
for which he did not have a license, he was not entitled to
claim self-defense. Additionally, he argues that Instruction number fourteen was improper because
it informed the jury that a person who is claiming self-defense must have
acted without fault. Randolph argues that this is an incorrect statement of
We note first that Randolph has waived his argument to the jury instructions
by failing to object at trial and by failing to tender a competing
set of instructions. Franklin v. State, 715 N.E.2d 1237, 1241 (Ind. 1999).
Randolph, however, argues that the instructions constitute fundamental error. However, this
claim is not available in post-conviction proceedings because the issue was available to
Randolph on direct appeal. The purpose of a petition for post-conviction relief
is to raise issues unknown or unavailable to a defendant at the time
of the original trial and appeal. Lockhart v. State, 632 N.E.2d 374,
375 (Ind. Ct. App. 1994), trans. denied. Issues available, but not raised,
at trial or on direct appeal are waived for post-conviction proceedings. Timberlake
v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537 U.S. 839,
123 S.Ct. 162, 154 L.Ed.2d 61 (2002). Additionally, our supreme court has
held that freestanding allegations of fundamental error are not available in post-conviction proceedings.
Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002) (The fundamental error
exception to the contemporaneous objection rule applies to direct appeals. In post-conviction
proceedings, complaints that something went awry at trial are generally cognizable only when
they show deprivation of the right to effective counsel or issues demonstrably unavailable
at the time of trial or direct appeal.). Thus, Randolphs fundamental error
argument is not available in post-conviction proceedings. Therefore, Randolph has waived this
argument. However, we still address the issue in terms of the effectiveness
of his trial and appellate counsel.
III. Ineffective Assistance of Counsel
A. Standard of Review
To prevail on a claim of ineffective assistance of trial counsel, Randolph must
show that his counsels performance fell below an objective standard of reasonableness as
determined by prevailing norms, and that the lack of reasonable representation prejudiced him.
Strickland v. Washington, 466 U.S. 668, 687 (1984); Hyppolite v. State, 774
N.E.2d 584, 601-02 (Ind. Ct. App. 2002), trans. denied. Counsel is afforded
considerable discretion in choosing strategy and tactics and we will accord that decision
deference. Connor v. State, 711 N.E.2d 1238, 1244 (Ind. 1999), cert. denied,
531 U.S. 829, 121 S.Ct. 81, 148 L.Ed.2d 43 (2000). A strong
presumption arises that counsel rendered adequate assistance and made all significant decisions in
the exercise of reasonable professional judgment. Id. Isolated mistakes, poor strategy,
inexperience, and instances of bad judgment do not necessarily render representation ineffective.
The standard for reviewing claims of ineffective assistance of appellate counsel is the
same as the standard for reviewing assistance of trial counsel. Walker v. State,
779 N.E.2d 1158, 1162 n.1 (Ind. Ct. App. 2002), trans. denied. To
prevail on a claim of ineffective assistance of counsel, Randolph must show that
his counsels performance fell below an objective standard of reasonableness as determined by
prevailing norms, and that the lack of reasonable representation prejudiced him. Strickland,
466 U.S. at 687; Hyppolite, 774 N.E.2d at 601-02.
B. Randolphs Claims of Ineffective Assistance of Trial Counsel
Randolph claims that his trial counsel was ineffective for not objecting to the
self-defense instructions given by the trial court. He also claims that his
trial counsel was ineffective for not tendering correct instructions setting out the necessity
of a causal connection between the crime committed and the act of self-defense.
Prejudice exists when a petitioner shows there is a reasonable probability that, but
for counsels unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the
outcome. Strickland, 466 U.S. at 694. Although we held above that
Randolphs post-conviction challenge to the instructions was waived, we must still examine whether
his counsel was effective.
The State contends that any error in the instructions given was harmless.
We agree. Errors in the giving or refusing of instructions are harmless
where a conviction is clearly sustained by the evidence and the instruction would
not likely have impacted the jurys verdict. Crawford v. State, 550 N.E.2d
759, 762 (Ind. 1990). An instruction error will result in reversal when
the reviewing court cannot say with complete confidence that a reasonable jury would
have rendered a guilty verdict had the instruction not been given. Dill
v. State, 741 N.E.2d 1230, 1233 (Ind. 2001) (citing White v. State, 675
N.E.2d 345, 349 (Ind. Ct. App. 1996), trans. denied)).
Our supreme court has held that the giving of an instruction similar to
the instructions we are considering here was not erroneous. In Mayes v.
State, 744 N.E.2d 390 (Ind. 2001), the trial court gave an instruction on
self-defense which stated that a person is not justified in using force
even for self-defense if he is committing, or is escaping after the
commission of, a crime. Id. at 392. Mayes conceded that he
possessed an unlicensed gun at the time he shot his girlfriend and admitted
that doing so was a crime. Thus, Mayes argued that the jury
could have believed that self-defense was unavailable to Mayes. Our supreme court
agreed that in some instances a contemporaneous crime may not negate a claim
of self-defense. Id. at 393. However, the court stated that such
a literal application of the statute would nullify claims of self-defense in a
variety of circumstances and produce absurd results. Id.
Our supreme court held that because a defendant is committing a crime at
the time he is allegedly defending himself is not sufficient standing alone to
deprive the defendant of the defense of self-defense.
Id. at 394.
Rather, there must be an immediate causal connection between the crime and the
confrontation. Id. In other words, the evidence must show that but
for the defendant committing a crime, the confrontation resulting in injury to the
victim would not have occurred. Id. The court then turned to
the question of whether there was evidence demonstrating that but for Mayess possession
of an unlicensed handgun, the confrontation resulting in his girlfriends death would not
have occurred. Id. Determining that this was ultimately a question for
the jury and that the jury returned a guilty verdict, the court stated
that the trial courts instruction was not erroneous. Id. at 394-95.
The case at hand is very similar to Mayes. Here, Randolph is
arguing that, because he was in possession of an unlicensed handgun, the jury
could have believed that the claim of self-defense was unavailable to him.
He makes a similar argument by saying that, through Instruction number fourteen, the
jury could have believed that the claim of self-defense was unavailable to him
because he was not without fault. However, following the holding of Mayes,
we do not find Randolphs argument convincing.
As our supreme court did in Mayes, we turn to the question of
whether there was evidence demonstrating that but for Randolphs possession of an unlicensed
handgun, the confrontation resulting in Hickss death would not have occurred. Our
supreme court considered the evidence in Randolphs direct appeal:
One of the States key witnesses, Marcus Holloway, testified that Hicks raised his
hands when Randolph pointed his weapon. In turn, the only evidence supporting
a claim of self-defense was Randolphs own testimony. Further, firing multiple shots
undercuts a claim of self-defense. Three eyewitnesses testified that Randolph fired multiple
shots at Hicks. The jury was free to disbelieve Randolphs self-serving testimony,
which it apparently did.
Randolph, 755 N.E.2d at 576. The fact that Randolph did not have
a license to possess the weapon would seem to have no bearing on
its use in Hickss death. On the other hand, the jury could
have concluded that but for Randolphs possession of the unlicensed handgun, Hicks would
still be alive because Randolphs unlicensed handgun was required, by law, to be
kept at his dwelling, on his property, or at his fixed place of
business. See Ind. Code § 35-47-2-1. Ultimately, it is left to
the jury, the fact-finder in this case, to determine whether there is an
immediate causal connection between Randolphs possession of an unlicensed firearm and Hickss death.
This is not an issue that can be resolved by this court
as a matter of law. See Mayes, 744 N.E.2d at 394.
Additionally, we note that Randolph is not entitled to relief on this claim
for an additional reason. As noted by our supreme court in Randolphs
direct appeal, three eyewitnesses testified that Randolph fired multiple shots at Hicks.
Firing multiple shots undercuts a claim of self-defense. Id. at 395 n.2.
Thus, there was overwhelming evidence before the jury that Randolphs claim of
self-defense was without merit notwithstanding the contemporaneous crime language contained in the instruction.
See id. Because any error in the jury instructions was harmless,
we cannot now say that Randolphs trial counsel was ineffective.
C. Randolphs Claims of Ineffective Assistance of Appellate Counsel
Randolph argues that his appellate counsel was ineffective for failing to raise the
issue of improper jury instructions. Again, Randolph has not demonstrated to this
court that the outcome of his trial would have been different had his
appellate counsel raised the issue. First, we held above that the trial
courts instructions were not grounds for reversal. Second, there was overwhelming evidence
of guilt so as to rebut any self-defense claim. Therefore, we cannot
say that Randolphs appellate counsel was ineffective.
Any errors in the jury instructions on self-defense were harmless. Additionally, Randolphs
trial and appellate counsel were not ineffective. Therefore, the denial of Randolphs
Petition for Post-Conviction Relief is affirmed.
BROOK, C.J., and SULLIVAN, J., concur.
As an example, the court stated that, had Mayes shot his girlfriend
the minute before his handgun license expired, he would have been able to
assert a claim of self-defense, but, had he shot her a minute later,
the claim would have been unavailable to him. The court noted that
this would not seem to be the intent of the legislation.
744 N.E.2d at 394.