MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          May 31 2017, 9:58 am
court except for the purpose of establishing
                                                                        CLERK
the defense of res judicata, collateral                             Indiana Supreme Court
                                                                       Court of Appeals
estoppel, or the law of the case.                                        and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Cynthia Maricle                                          Attorney General of Indiana
Indianapolis, Indiana                                    Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kenneth Frye,                                            May 31, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         89A05-1701-PC-18
        v.                                               Appeal from the Wayne Superior
                                                         Court
State of Indiana,                                        The Honorable Gregory Horn,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         89D02-1407-PC-13



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 89A05-1701-PC-18 | May 31, 2017           Page 1 of 11
                                STATEMENT OF THE CASE
[1]   Appellant-Petitioner, Kenneth Frye (Frye), appeals the post-conviction court’s

      denial of his petition for post-conviction relief.


[2]   We affirm.


                                                    ISSUE
[3]   Frye presents us with one issue on appeal, which we restate as: Whether Frye

      received ineffective assistance of trial counsel when counsel failed to tender a

      voluntary manslaughter instruction.


                      FACTS AND PROCEDURAL HISTORY
[4]   A detailed recitation of the facts in this case were set forth in our memorandum

      opinion on direct appeal as follows:

              Frye supported himself by doing odd jobs, and spent most of his
              evenings drinking at the Knuckleheads Bar in Richmond. Frye
              admitted that he usually carried a .25 caliber handgun with him
              when he went out at night. Frye would socially drink with three
              of his friends, and the group would take turns buying pitchers of
              beer. Sometimes [Percy Campbell (Campbell)] joined the group;
              however, Campbell was always short on money and wanted to
              drink with them without paying.


              One night in early October 2011, Campbell, who was wearing a
              uniform shirt from a new job, approached Frye and his friends,
              and asked if he could have a drink with them. Despite
              Campbell’s new job, he needed someone to loan him money for
              drinks because he had yet to be paid, but he promised to pay
              them back when he received his first paycheck. Frye agreed to

      Court of Appeals of Indiana | Memorandum Decision 89A05-1701-PC-18 | May 31, 2017   Page 2 of 11
        loan Campbell money for drinks and bought four pitchers of beer
        for $20.


        Three or four weeks later, on October 31, 2011, Frye saw
        Campbell again. On that night, Frye was drinking alone at
        Knuckleheads and probably drank about 4 pitchers of beer. Frye
        asked Campbell about the debt, and Campbell agreed to repay
        Frye later that night at Alley Kats, a nearby bar.


        Frye went to Alley Kats around 1:00 a.m. to collect his debt.
        According to Frye, when he approached Campbell about the
        debt, Campbell was dismissive. Frye described Campbell as
        “showin’ off for his people” at Alley Kats and “actin’ like he
        didn’t know me now.” Frye walked away from Campbell, but
        then returned a few minutes later, determined to be repaid.
        Witnesses, however, described Frye as the aggressor and claimed
        that Frye repeatedly punched Campbell in the face until
        Campbell grabbed him and held him in a headlock.


        The confrontation ended when the bar owner and another
        employee told Frye to leave the bar and escorted him outside.
        Campbell was allowed to remain in the bar because the owner
        believed that Frye was the aggressor. A few minutes later, Frye
        walked back in the bar, raised his gun, and shot at Campbell.
        Frye claims that the first shot was fired at Campbell’s knees, but
        no witness account or physical evidence supports that assertion.
        Frye continued walking toward Campbell and fired a second shot
        that struck Campbell in the eye. Campbell died almost instantly
        from a brain injury. Frye immediately ran from the bar.


Frye v. State, No. 89A05-1211-CR-577, 2013 WL 4022448 (Ind. Ct. App., Aug.

13, 2013) (internal references omitted).




Court of Appeals of Indiana | Memorandum Decision 89A05-1701-PC-18 | May 31, 2017   Page 3 of 11
[5]   On November 3, 2011, the State filed an Information, charging Frye with

      murder. A jury trial commenced on September 24, 2012, and the jury returned

      a guilty verdict on September 27, 2012. During the sentencing hearing on

      October 18, 2012, the trial court imposed an executed sentence of fifty-five

      years. On direct appeal, Frye argued that his sentence was inappropriate

      pursuant to Appellate Rule 7(B). Upon review, we affirmed the trial court.


[6]   On July 3, 2014, Frye filed a petition for post-conviction relief, which was

      amended by counsel on July 1, 2016. The post-conviction court conducted a

      hearing on Frye’s petition on October 13, 2016. On December 15, 2016, the

      post-conviction court issued its findings of fact, conclusions thereon, and

      judgment, denying Frye’s petition for post-conviction relief, in pertinent part, as

      follows:

              12. At trial, Frye testified that Campbell was ‘beatin’ around the
              bush’ about paying him back the money and he felt that
              Campbell was making fun of him which made him frustrated.


              13. However, Frye was directly asked whether or not he was
              starting to get angry at this time, to which Frye replied, ‘Nah, it
              was just like just, you know, either you are or you ain’t …. It was
              just either you, either you’re going to pay or you’re not going to
              pay.’


              14. When asked whether he was angry or mad after the first
              altercation at Alley Kats had occurred and he was being escorted
              outside, Frye simply states, ‘No.’ Frye later clarified that he was
              ‘upset’ but again, state[d] that he was not mad or angry.



      Court of Appeals of Indiana | Memorandum Decision 89A05-1701-PC-18 | May 31, 2017   Page 4 of 11
        15. After testifying regarding the initial incident inside the bar
        and being escorted outside, Frye was asked: ‘How long were you
        outside before you went back in?’ To which, Frye answered,
        ‘Probably wasn’t about two (2) minutes … I don’t know it might
        have been like, yeah, yeah, it was like two (2) minutes.’


        16. Frye then stated that he went back inside, not to go back
        after Campbell but ‘… to see actually why was throwed out …’
        He reiterated this, again, later in his testimony.


        17. Frye claimed throughout the trial that the shooting was ‘an
        accident.’ Frye originally testified that he was shooting at
        Campbell’s kneecap but later in his testimony stated that he was
        ‘shooting at, I was shootin’ at the ground, man.’


        18. Frye even went so far as to testify that he was shooting
        downward but that the bullet kept curving up until it hit
        Campbell in the eye.


        19. Frye was asked, yet again, on cross-examination if he was
        mad at this time. This time, Frye said, ‘I was, uh, basically
        wasn’t thinkin’ man, I was drunk, uh, tipsy, uh, dizzy, you
        know, confused … I was upset.’


        ****


        30. Frye’s own testimony at trial was that the killing of Campbell
        was ‘accidental and reckless;’ that he meant to shoot Campbell in
        the leg and not the head. Such evidence is consistent with the
        trial strategy of attempting to show that the act was reckless and
        not an intentional killing.




Court of Appeals of Indiana | Memorandum Decision 89A05-1701-PC-18 | May 31, 2017   Page 5 of 11
              31. The [c]ourt finds no evidence to support Frye’s assertion or
              any conclusion that Frye acted under ‘sudden heat’ resulting
              from any conduct by Campbell.


              32. Neither Frye’s testimony nor any other witness testimony
              established that Campbell took any action of any kind or
              character which prompted sudden rage, anger, resentment, or
              terror which would have prevented Frye from ‘cooling down’
              prior to shooting and killing Campbell.


              33. The [c]ourt further finds that to the extent that Frye did
              experience any sudden rage, anger, resentment, or terror, such
              feeling or emotion had dissipated sufficiently in the two (2)
              minutes that Frye remained outside after being escorted out of
              the bar, which amount of time allowed Frye to regain his
              composure, deliberation, and to think rationally about his
              actions.


              34. Frye’s decision to, thereafter, reenter the bar, aim the gun,
              and to pull the trigger thereby having the bullet strike Campbell
              in the head causing him to die was an intentional act consistent
              with the verdict of the jury.


              35. There was no basis in fact or law to pursue a claim of
              ‘sudden heat’ and a requested instruction on ‘sudden heat’ was
              not warranted.


      (Appellant’s App. Vol. II, pp. 55-56; 57-59).


[7]   Frye now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
                                            I. Standard of Review

      Court of Appeals of Indiana | Memorandum Decision 89A05-1701-PC-18 | May 31, 2017   Page 6 of 11
[8]   We observe that post-conviction proceedings do not grant a petitioner a super-

      appeal but are limited to those issues available under the Indiana Post-

      Conviction Rules. Ind. Post-Conviction Rule 1(1). Post-conviction

      proceedings are civil in nature, and petitioners bear the burden of proving their

      grounds for relief by a preponderance of the evidence. P-C.R. 1(5). A

      petitioner who appeals the denial of post conviction faces a rigorous standard of

      review, as the reviewing court may consider only the evidence and the

      reasonable inferences supporting the judgment of the post-conviction court.

      McCullough v. State, 973 N.E.2d 62, 74 (Ind. Ct. App. 2012), trans. denied. The

      appellate court must accept the post-conviction court’s findings of fact and may

      reverse only if the findings are clearly erroneous. Id. If a post-conviction relief

      petitioner was denied relief, he or she must show that the evidence as a whole

      leads unerringly and unmistakably to an opposite conclusion than that reached

      by the post-conviction court. Id.


                                 II. Ineffective Assistance of Trial Counsel


[9]   Frye contends that the post-conviction court erred in finding that he was not

      denied the effective assistance of trial counsel. The Sixth Amendment to the

      United States Constitution protects the right to counsel and the right to effective

      assistance of counsel. When considering a claim of ineffective assistance of

      counsel, a “strong presumption arises that counsel rendered adequate assistance

      and made all significant decisions in the exercise of reasonable professional

      judgment.” Morgan v. State, 755 N.E.2d 1070, 1073 (Ind. 2001). “[C]ounsel’s

      performance is presumed effective, and a defendant must offer strong and

      Court of Appeals of Indiana | Memorandum Decision 89A05-1701-PC-18 | May 31, 2017   Page 7 of 11
       convincing evidence to overcome this presumption.” Williams v. State, 771

       N.E.2d 70, 73 (Ind. 2002). Isolated poor strategy, inexperience, or bad tactics

       do not necessarily constitute ineffective assistance of counsel, a petitioner must

       demonstrate both that his counsel’s performance was deficient and that the

       petitioner was prejudiced by the deficient performance. Ben-Yisrayl v. State, 729

       N.E.2d 102, 106 (Ind. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687,

       104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)), cert. denied, 729 N.E.2d 102 (2001). A

       counsel’s performance is deficient if it falls below an objective standard of

       reasonableness based on prevailing professional norms. French v. State, 778

       N.E.2d 816, 824 (Ind. 2002). To establish prejudice, the petitioner 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. “A

       reasonable probability is a probability sufficient to undermine confidence in the

       outcome.” Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy

       either prong will cause the claim to fail, but most ineffective assistance of

       counsel claims can be resolved by a prejudice inquiry alone. French, 778

       N.E.2d at 824.


[10]   Frye alleges that his trial counsel committed ineffective assistance when he

       failed to tender an instruction on voluntary manslaughter. Frye was charged

       with and convicted of murder. To obtain a conviction for murder, the State

       was required to prove beyond a reasonable doubt that Frye knowingly or

       voluntarily killed another human being. Ind. Code § 35-42-1-1. The only

       difference between murder and voluntary manslaughter is the existence of

       Court of Appeals of Indiana | Memorandum Decision 89A05-1701-PC-18 | May 31, 2017   Page 8 of 11
       sudden heat, which for purposes of voluntary manslaughter is manifested by

       emotions such as anger, rage, sudden resentment, or terror sufficient to obscure

       the reason of an ordinary person, prevent deliberation and premeditation, and

       render the defendant incapable of cool reflection. Evans v. State, 727 N.E.2d

       1072, 1077 (Ind. 2000). Voluntary manslaughter is defined in Indiana Code

       section 35-42-1-3, which provides in relevant part, “A person who knowingly or

       intentionally kills another human being . . . while acting under sudden fear

       commits voluntary manslaughter, a Level 2 felony.” “The existence of sudden

       heat is a mitigating factor that reduces what otherwise would be murder . . . to

       voluntary manslaughter.” I.C. § 35-42-1-3. An instruction on voluntary

       manslaughter becomes warranted when the evidence demonstrates a serious

       evidentiary dispute regarding the mitigating factor of sudden heat; that is, there

       must be evidence showing sufficient provocation to induce passion that renders

       a reasonable person incapable of cool reflection. Massey v. State, 955 N.E.2d

       247, 256 (Ind. Ct. App. 2011). However, words alone do not constitute

       sufficient provocation, especially words that are not intentionally designed to

       provoke. Suprenant v. State, 925 N.E.2d 1280, 1283 (Ind. Ct. App. 2010), trans.

       denied.


[11]   There is no such evidence of sudden heat here. During his trial, Frye testified

       that when the argument at Alley Kats became heated upon Campbell’s repeated

       refusal to repay Frye, Frye implored Campbell to “just pay [him] [his] money

       and [he’ll] leave.” (Tr. p. 583). As the fight ensued and Campbell held Frye in

       a headlock, the confrontation was broken up by employees and Frye was


       Court of Appeals of Indiana | Memorandum Decision 89A05-1701-PC-18 | May 31, 2017   Page 9 of 11
       thrown out of Alley Kats. He affirmed that he was not angry when he was

       reaching for his gun as he was being escorted out of the bar. Frye claimed that

       he was surprised to find himself outside and explained that he “felt upset and

       humiliated. Drunk and dizzy, confused.” (Tr. p. 590). After being outside for

       approximately two minutes, Frye entered Alley Kats again and shot Campbell.

       During closing argument, Frye’s counsel advocated that “[t]he whole issue in

       this case is knowingly or intentional versus reckless. I’d submit to you, Ladies

       and Gentlemen, that [Frye’s] state of mind was reckless.” (Tr. p. 689).


[12]   Our review of the transcript does not reveal any appreciable evidence of sudden

       heat. Although there is testimony about hurt feelings and being upset, at no

       moment did Frye ever articulate that he developed an “impetus to kill” which

       “suddenly overwhelmed” him. See Stevens v. State, 691 N.E.2d 412, 427 (Ind.

       1997), reh’g denied, cert. denied, 525 U.S. 1021 (1998). Moreover, the trial record

       indicates, as pointed out by the post-conviction court, that Frye’s trial counsel

       pursued a theory of reckless homicide to persuade the jury that Campbell’s

       killing was accidental. As such, counsel’s decision not to offer an instruction on

       voluntary manslaughter amounted to a strategic decision. “There is no

       constitutional requirement that a defense attorney be a flawless strategist of

       tactician;” rather “[c]ounsel is afforded considerable discretion in choosing

       strategy and tactics and we will accord that decision deference.” Woodson v.

       State, 961 N.E.2d 1035, 1041-42 (Ind. Ct. App. 2012), trans. denied; Randolph v.

       State, 802 N.E.2d 1008, 1013 (Ind. Ct. App. 2004), trans. denied. We “will not

       lightly speculate as to what may or may not have been an advantageous trial


       Court of Appeals of Indiana | Memorandum Decision 89A05-1701-PC-18 | May 31, 2017   Page 10 of 11
       strategy as counsel should be given deference in choosing a trial strategy which,

       at the time and circumstances, seems best.” Whitener v. State, 696 N.E.2d 40, 42

       (Ind. 1998). Given the evidence in the record, which supported an inference

       that Campbell’s death was accidental as Frye only intended to shoot him “in

       the leg or something,’” we find that counsel’s pursuit of a recklessness defense

       was a reasonable strategy. (Tr. p. 592). Because we conclude that there was no

       serious evidentiary dispute that Frye acted under sudden heat, he was not

       entitled to an instruction on voluntary manslaughter. Accordingly, Frye’s

       counsel’s trial performance did not fall below an objective standard of

       reasonableness and was not deficient. See French, 778 N.E.2d at 824.


                                             CONCLUSION
[13]   Based on the foregoing, we hold that Frye did not receive ineffective assistance

       of trial counsel.


[14]   Affirmed.


[15]   Najam, J. and Bradford, J. concur




       Court of Appeals of Indiana | Memorandum Decision 89A05-1701-PC-18 | May 31, 2017   Page 11 of 11
