FOR PUBLICATION


ATTORNEYS FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS                               GREGORY F. ZOELLER
Public Defender of Indiana                     Attorney General of Indiana

KELLY A. KELLY                                 NICOLE M. SCHUSTER
Deputy Public Defender                         Deputy Attorney General
Indianapolis, Indiana                          Indianapolis, Indiana
                                                                             FILED
                                                                        Feb 14 2013, 9:35 am

                              IN THE                                            CLERK
                    COURT OF APPEALS OF INDIANA                               of the supreme court,
                                                                              court of appeals and
                                                                                     tax court




JAMES ROBERSON,                                )
                                               )
       Appellant-Petitioner,                   )
                                               )
              vs.                              )    No. 18A02-1204-PC-306
                                               )
STATE OF INDIANA,                              )
                                               )
       Appellee-Respondent.                    )


                    APPEAL FROM THE DELAWARE CIRCUIT COURT
                           The Honorable John M. Feick, Judge
                              Cause No. 18C04-0901-PC-1



                                    February 14, 2013

                               OPINION - FOR PUBLICATION


BARNES, Judge
                                        Case Summary

       James Roberson appeals the denial of his petition for post-conviction relief (“PCR

petition”), which challenged his conviction for murder. We reverse and remand.

                                              Issue

       The sole dispositive issue is whether Roberson received ineffective assistance of

trial counsel.1

                                              Facts

       In the early morning hours of March 18, 2006, Roberson and Antron Young were

at a nightclub in Muncie. Young repeatedly exchanged angry words with persons at the

club, and he also repeatedly bumped and pushed Roberson. Young had a reputation for

being a bully. The nightclub closed shortly before 3:00 a.m. As Roberson and Young

left the club, they had to be prevented from fighting each other by a mutual friend, with

the friend essentially forcing Roberson into his car to separate him from Young.

       Many of the people who were at the club, including Roberson and Young, went to

a nearby convenience store, with Young arriving there after Roberson. In the parking lot,

Roberson argued with two friends about a handgun, and he eventually took possession of

it. Roberson then said that he wanted to “merk a n***a,” which is slang for wanting to

kill someone, and that he would kill anyone who “messes” with his friends. Tr. pp. 261,

272.



1
  Roberson also contends that he received ineffective assistance of appellate counsel.   Given our
resolution of the trial counsel issue, we need not address that question.
                                                2
       Young then arrived at the convenience store with his cousin, Bruce Smith.

Roberson saw Young and yelled to Smith, “I need to holler at your cousin.” Id. at 139.

Smith thought Roberson and his friends could have been intending to “jump” on Young.

Id. at 141. Young got out of Smith’s vehicle, lifted up his shirt to show that he was

unarmed, and then went into the convenience store.              Roberson stayed outside.

Roberson’s friend, Larry Brown, went into the store and attempted to fight Young, but

other people broke it up.

       After this fight, another cousin of Young’s, Brian Young, left the store, shook

Roberson’s hand as he stood by the door, and said, “see you later.” Id. at 368. Then

Young next left the store, immediately punched Roberson in the face, and began walking

away. Roberson drew the handgun and fired three shots at Young, with two of the shots

striking Young in the head and chest. After Young fell to the ground, Roberson fired

several more shots at him, saying, “die mother f***er, die.” Id. at 236. Young died from

the gunshot wounds.

       The State charged Roberson with murder.         At trial held on April 2-4, 2007,

Roberson claimed self-defense, and the trial court instructed the jury accordingly. In

addition, the trial court gave final instructions to the jury on voluntary manslaughter as a

lesser included offense of murder.      It does not appear that trial counsel expressly

requested instructions on voluntary manslaughter, but neither did counsel object to any




                                             3
such instructions being given.2 Ultimately, the jury convicted Roberson of murder.

Roberson pursued a direct appeal, claiming that the prosecutor had committed

misconduct during closing argument and that there was insufficient evidence to support

his conviction.      We rejected both arguments and affirmed Roberson’s conviction.

Roberson v. State, No. 18A04-0705-CR-289 (Ind. Ct. App. Jan. 25, 2008), trans. denied.

        Roberson subsequently filed a PCR petition, arguing he received ineffective

assistance of trial and appellate counsel with respect to not objecting to the content of the

trial court’s instructions regarding voluntary manslaughter and not challenging them on

direct appeal as fundamentally erroneous. On March 22, 2012, the post-conviction court

denied Roberson’s petition. He now appeals.

                                               Analysis

        PCR proceedings are civil in nature, and a defendant bears the burden of

establishing his or her claims by a preponderance of the evidence. Smith v. State, 822

N.E.2d 193, 198 (Ind. Ct. App. 2005), trans. denied. A defendant appealing the denial of

a PCR petition is challenging a negative judgment. Id. Thus, to the extent this appeal

turns on factual issues, Roberson must convince this court that the evidence as a whole

leads unerringly and unmistakably to a decision opposite that reached by the PCR court.

See id. “In other words, the defendant must convince this court that there is no way

within the law that the court below could have reached the decision it did.” Id. We will



2
  At the PCR hearing, neither of Roberson’s trial attorneys had any recollection of discussions related to
the final jury instructions.
                                                    4
not defer to the PCR court’s legal conclusions, but we do accept its factual findings

unless they are “clearly erroneous.” Id.

      To prevail on a claim of ineffective assistance of counsel, a petitioner must

demonstrate both that his or her 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, 2064 (1984)), cert. denied. An attorney’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 meet the appropriate test for 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.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Failure to satisfy either prong

will cause the claim to fail. Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006).

      Roberson contends that the murder and voluntary manslaughter instructions were

erroneous both because they effectively precluded the jury from considering whether

Roberson committed voluntary manslaughter if the State proved the basic elements of

murder, i.e. knowingly killing Young, and because they erroneously placed the burden on

the State of proving the existence of sudden heat beyond a reasonable doubt. At the

outset, we acknowledge that it does not appear trial counsel expressly requested that the

jury be instructed on voluntary manslaughter as a lesser included offense of murder.

                                            5
However, once the trial court indicated that it was going to give such instructions and

counsel acquiesced in that decision, it was incumbent upon counsel to ensure that the

instructions were correct.

        Trial counsel’s acquiescence in the giving of instructions regarding voluntary

manslaughter also may have constituted a strategic decision to permit the jury to consider

convicting Roberson of that offense rather than murder.3 The post-conviction court ruled

in part that it would have been inconsistent for Roberson to pursue a claim of self-defense

and simultaneously obtain jury instructions allowing the jury to find that he was acting

under sudden heat so as to support a conviction for voluntary manslaughter instead of

murder. The law in Indiana is clear, however, that a defendant in a murder trial may

claim both self-defense and, alternatively, seek a conviction for voluntary manslaughter

instead of murder. See Clark v. State, 834 N.E.2d 153, 158 (Ind. Ct. App. 2005) (holding

that “an instruction on self-defense does not preclude an instruction on voluntary

manslaughter”). The post-conviction court’s suggestion to the contrary was erroneous.

        Although voluntary manslaughter is a lesser included offense of murder, it is not a

“typical” lesser included offense, because instead of requiring the State to prove less than

all the elements of murder, it requires the State to prove all of the elements of murder and

disprove the existence of sudden heat when there is any appreciable evidence of such in

3
 Moreover, even if trial counsel had objected to the jury being instructed on voluntary manslaughter, the
State may insist on the jury being so instructed when there is evidence of sudden heat in the record. See
Collins v. State, 966 N.E.2d 96, 103-04 (Ind. Ct. App. 2012). There was such evidence in this case, as we
discuss later. Again, regardless of whether trial counsel originally wanted the jury to be instructed on
voluntary manslaughter, they had to insist that any such instructions be legally correct.

                                                   6
the record. See Watts v. State, 885 N.E.2d 1228, 1232 (Ind. 2008). Additionally, a

conviction for voluntary manslaughter constitutes an acquittal of murder.       Id.   The

absence of sudden heat is not an element of murder, and a jury ordinarily does not have to

be instructed that the State has the burden of disproving the existence of sudden heat in

order to gain a murder conviction. Massey v. State, 955 N.E.2d 247, 255 n.4 (Ind. Ct.

App. 2011). If there is no evidence in the record of sudden heat, the jury need not be

instructed that the State bears the burden of disproving the existence of sudden heat. Id.

If, however, the record contains any appreciable evidence of sudden heat, an instruction

on voluntary manslaughter is justified. Roark v. State, 573 N.E.2d 881, 882 (Ind. 1991).

Additionally, such evidence may arise from either the State’s or the defendant’s

evidence; the defendant does not bear the burden of placing the issue of sudden heat into

question. Dearman v. State, 743 N.E.2d 757, 761 (Ind. 2001).

      “‘Sudden heat’” is characterized as anger, rage, resentment, or terror sufficient to

obscure the reason of an ordinary person, preventing deliberation and premeditation,

excluding malice, and rendering a person incapable of cool reflection.” Suprenant v.

State, 925 N.E.2d 1280, 1282 (Ind. Ct. App. 2010), trans. denied. Words alone do not

constitute sufficient provocation to warrant a jury instruction on voluntary manslaughter,

especially when the words were not intended to provoke the defendant, such as fighting

words. Id. Additionally, any alleged provocation must be such that it would obscure the

reason of an “ordinary man,” which is an objective as opposed to a subjective standard.

Id. at 1282-83. Unlike the right to self-defense, which ceases to exist once a danger has

                                            7
passed, “sudden heat can survive for a while beyond the act of provocation.” Roark, 573

N.E.2d at 883.

      We conclude the record here contains ample evidence of possible sudden heat.

Throughout the evening leading up to the shooting, Young was being argumentative and

belligerent toward Roberson, including repeatedly bumping into him at the nightclub.

Also, although Roberson verbalized an intention to “merk a n***a” before shooting

Young, we note that Roberson did not actually shoot Young until after Young had

punched him in the face. Tr. p. 261. Thus, it is open to reasonable debate whether

Roberson’s prior comments were mere bragging and whether he would have pulled the

trigger if Young had not punched him. The shooting also occurred immediately after

Young’s punch, meaning there was little or no time for calm reflection by Roberson

between Young’s ultimate act of provocation and the shooting. Young’s provocation

went beyond mere words to physical violence, although Young’s words and other

conduct throughout the evening may have contributed to the provocation.

      This evidence of sudden heat meant that it was crucial that the jury be properly

instructed on the State’s burden of proof for murder and voluntary manslaughter. In this

case, the trial court gave the following jury instruction, number 4, regarding the offense

of murder:

                    The crime of murder is defined by law as follows:

                  A person who knowingly or intentionally kills another
             human being commits murder, a felony.


                                            8
                     Before you may convict the Defendant, the State must
               have proved each of the following beyond a reasonable doubt:

                     1.     The Defendant, James D. Roberson, III

                     2.     knowingly

                     3.     killed

                     4.     Antron Dushaun Young.

                      If the State failed to prove each of these elements
               beyond a reasonable doubt, you must find the Defendant not
               guilty of murder, a felony, as charged in Count 1.

App. p. 166.

      It also gave the following instruction, number 12, regarding voluntary

manslaughter:

                      The Defendant is charged with Murder, a felony. The
               crimes of Voluntary Manslaughter, a Class A Felony,
               Voluntary Manslaughter, a Class B Felony, Involuntary
               Manslaughter, a Class C Felony, and Reckless Homicide, a
               Class C felony are offenses included in the crime of Murder.
               If the State proves the Defendant guilty of Murder, you need
               not consider the included crimes. However, if the State fails
               to prove the Defendant committed the crime of Murder as
               charged, you may consider whether the Defendant committed
               Voluntary Manslaughter, as a Class A Felony, Voluntary
               Manslaughter, as a Class B Felony, Involuntary
               Manslaughter, a Class C Felony, or Reckless Homicide, a
               Class C Felony.

                      You must not find the Defendant guilty of more than
               one crime.




                                            9
Id. at 174 (emphasis added). However, in reading this instruction to the jury, the trial

court said, “If the State proves the Defendant guilty of Murder, you must not consider the

included crimes.” Tr. p. 452 (emphasis added).

      Finally, the trial court gave the following instruction, number 13, regarding

voluntary manslaughter:

                    If you find that the Defendant is not guilty of the crime
             of Murder as charged in the information, you may then
             consider whether the Defendant is guilty of the included
             offense of Voluntary Manslaughter, as a Class A Felony or as
             a Class B Felony.

                    The crime of Voluntary Manslaughter is defined by
             law as follows:

                    A person who knowingly or intentionally kills another
             human being while acting under sudden heat commits
             Voluntary Manslaughter, a Class B Felony. However, the
             offense is a Class A Felony if it is committed by means of a
             deadly weapon.

                   The existence of sudden heat is a mitigating factor that
             reduces what otherwise would be murder to Voluntary
             Manslaughter. The State has the burden of proving beyond a
             reasonable doubt that the Defendant was not acting under
             sudden heat.

                    Before you may convict the Defendant of Voluntary
             Manslaughter, as a Class A Felony, the State must have
             proved each of the following elements beyond a reasonable
             doubt:

                    1.     The Defendant, James Roberson, III

                    2.     knowingly or intentionally

                    3.     killed, by means of a deadly weapon

                                           10
                   4.     Antron Dushaun Young

                   5.     while he was acting under sudden heat.

                    If the State failed to prove each of these elements
             beyond a reasonable doubt, you must find the Defendant not
             guilty of Voluntary Manslaughter, a Class A Felony.

                    If you find that the Defendant is not guilty of the
             included offense of Voluntary Manslaughter, a Class A
             felony, you may then consider whether the Defendant is
             guilty of the included offense of Voluntary Manslaughter, as
             a Class B Felony.

                    Before you may convict the Defendant of Voluntary
             Manslaughter, as a Class B Felony, the State must have
             proved each of the following elements beyond a reasonable
             doubt:

                   1.     The Defendant, James Roberson, III

                   2.     knowingly or intentionally

                   3.     killed

                   4.     Antron Dushaun Young

                   5.     while he was acting under sudden heat.

                   The difference between Voluntary Manslaughter, as a
             Class A Felony, and Voluntary Manslaughter, as a Class B
             Felony, is that the State has the additional burden of proving
             beyond a reasonable doubt that the killing was committed by
             means of a deadly weapon for a conviction as a Class A
             Felony.

App. pp. 175-76.




                                          11
        Turning first to instruction 13, there is no doubt that instruction contains

erroneous, internally inconsistent, and inherently contradictory language. “It is well

settled in Indiana that sudden heat is not an element of voluntary manslaughter.” Boesch

v. State, 778 N.E.2d 1276, 1279 (Ind. 2002). Rather, where there is evidence of sudden

heat, the State bears the burden of disproving its existence beyond a reasonable doubt.

Id. An instruction assigning to the State the burden of affirmatively proving sudden heat

is erroneous as a matter of law. Id. Thus, to the extent instruction 13 twice stated that the

State bore the burden of proving the existence of sudden heat beyond a reasonable doubt,

it was legally erroneous. See id.

        Boesch went on to hold that the instruction in that case, which as here had not

been objected to, was not fundamentally erroneous.4 The erroneous instruction in Boesch

also informed the jury that sudden heat was “a mitigating factor that reduces what

otherwise would be murder to voluntary manslaughter” and that “in order to prove the

offense of Murder . . . the State bears the burden in its evidence of negating the existence

of sudden heat beyond a reasonable doubt.” Id. at 1280. The Boesch court also noted

that defense counsel had correctly emphasized to the jury during closing argument that

the State bore the burden of disproving the existence of sudden heat. Id.

        This court thoroughly examined Boesch’s holding in Eichelberger v. State, 852

N.E.2d 631 (Ind. Ct. App. 2006), trans. denied. In Eichelberger, the jury was erroneously

4
  Boesch did not address whether the failure to object constituted ineffective assistance of counsel,
because the defendant in that case had not alleged ineffective assistance of counsel in his PCR petition;
the claim of fundamental error had been part of the defendant’s direct appeal, which our supreme court
decided simultaneously with the denial of the PCR petition.
                                                   12
instructed at the trial of a defendant charged with murder that to convict the defendant of

voluntary manslaughter instead, the State bore the burden of proving the existence of

sudden heat beyond a reasonable doubt. The instruction also stated, “The existence of

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

voluntary manslaughter.” Eichelberger, 852 N.E.2d at 635. Nowhere was the jury

instructed that to convict the defendant of murder, the State bore the burden of disproving

the existence of sudden heat.

       Despite some similarities to Boesch, this court held that the defendant received

ineffective assistance of trial counsel for tendering the faulty voluntary manslaughter

instruction. Id. at 639. In particular, we noted the Seventh Circuit’s grant of habeas

corpus relief in Sanders v. Cotton, 398 F.3d 572 (7th Cir. 2005). In Sanders, as with this

case, Boesch, and Eichelberger, the jury was erroneously instructed that sudden heat was

an element of voluntary manslaughter that the State bore the burden of proving. After the

defendant was convicted of murder and that conviction was affirmed on direct appeal,

this court affirmed the denial of post-conviction relief that had claimed fundamental error

and ineffective assistance of counsel with respect to the voluntary manslaughter

instruction. This court affirmed on the basis that the instruction also informed the jury

that sudden heat was a mitigating factor that reduced murder to voluntary manslaughter.

Sanders v. State, 764 N.E.2d 705, 713 (Ind. Ct. App. 2002), trans. denied, cert. denied.

       In subsequently granting habeas corpus relief, the Seventh Circuit held the

defendant had been denied fundamental due process because the jury had not at any time

                                            13
been given any instruction properly placing “the burden of proof on the State for showing

the absence of sudden heat to gain a murder conviction; rather, the only time the jury

instructions mentioned the burden of proof for sudden heat was in the manslaughter

instructions,” which improperly said the State had to prove the presence of sudden heat.

Eichelberger, 852 N.E.2d at 638-39 (citing Sanders, 398 F.3d at 582). As in Sanders, the

jury in Eichelberger never was informed that the State had to disprove the existence of

sudden heat in order to obtain a murder conviction, whereas in Boesch the jury had been

so instructed. On the basis of Sanders, the Eichelberger opinion held that the defendant

had received ineffective assistance of trial counsel for failing to ensure the jury was

instructed on the proper burden of proof for murder. Id.

      As Eichelberger and Sanders make very clear, proper jury instructions in a murder

case where there is any appreciable evidence of sudden heat should include an instruction

for murder that informs the jury of the State’s burden of disproving the existence of

sudden heat, as well as an instruction for voluntary manslaughter that properly identifies

the State’s burden regarding sudden heat. The jury here was not properly instructed. In

addition to the legally erroneous language of instruction 13, instruction 4, defining the

elements of murder, makes no mention of the State’s burden to disprove the existence of

sudden heat. Thus, the murder instruction here suffered from precisely the same fatal

flaw we identified in Eichelberger—it did not mention the State having to disprove

sudden heat in order to obtain a murder conviction. And unlike in Boesch, at no point



                                           14
was the jury otherwise instructed of the State’s burden of disproving sudden heat in order

to support a murder conviction.

       Nor does instruction 13, which mentions sudden heat as a mitigating factor and

that the State has the burden of disproving the existence of sudden heat, cure the defect of

instruction 4. First, as we have noted, instruction 13 is internally inconsistent in that it

also says the State has the burden of proving the existence of sudden heat. More

importantly, however, the jury instructions as a whole indicated to the jury that it could

only consider convicting Roberson of voluntary manslaughter if it first found him not

guilty of murder. Instruction 12 stated in part that the jury “need not” consider whether

Roberson had committed voluntary manslaughter if it had found he committed murder.

In reading this instruction to the jury, the trial court replaced “need not” with “must not.”

Instruction 13 likewise begins, “If you find that the Defendant is not guilty of the crime

of Murder . . ., you may then consider whether the Defendant is guilty of the included

offense of Voluntary Manslaughter . . . .” App. p. 175.

       It was a clearly incorrect statement of the law to inform the jury that it could only

consider convicting Roberson of voluntary manslaughter instead of murder if it first

found him not guilty of murder, given that the jury instruction for murder did not inform

the jury that the State had to disprove the existence of sudden heat. Such an instruction

might be accurate with respect to lesser included offenses generally, but it is not with

respect to voluntary manslaughter, given that the State must prove not only all of the



                                             15
elements of murder but must additionally disprove the existence of sudden heat when

there is any appreciable evidence of such. See Watts, 885 N.E.2d at 1232.

       Here, the jury was asked to first consider whether Roberson was guilty of murder,

and if so, the jury was instructed to cease its deliberations at that point without

considering the issue of whether Roberson had acted under sudden heat. In other words,

the jury was given an incomplete instruction regarding murder, and it was precluded from

considering whether Roberson had acted under sudden heat when the killing occurred if it

found the State had proven the basic elements of murder. Indeed, where there is evidence

of sudden heat in the record, a jury should be clearly instructed to first consider whether

the State has disproved sudden heat and to be asked to choose whether the defendant is

guilty of either murder or voluntary manslaughter, simultaneously. We also note that in

the present case, unlike in Boesch, neither party explained the proper burden of proof to

the jury during their closing arguments. Additionally, given the manner in which the jury

was instructed, it would have been legally impossible for it to acquit Roberson of murder

but convict him of voluntary manslaughter. Assuming the jury rejected Roberson’s self-

defense claim, if the jury did not find that he knowingly killed Young, it could convict

him of neither murder nor voluntary manslaughter.

       We conclude it was deficient performance for trial counsel not to point out to the

trial court the errors in instructions 4, 12, and 13, which were clearly defined as errors at




                                             16
the time of Roberson’s trial.5 We further conclude that Roberson was prejudiced by this

performance. The evidence of sudden heat in this case was not inconsiderable. It is

readily conceivable that had the jury been properly and clearly instructed regarding the

State’s burden of disproving the existence of sudden heat in order to convict Roberson of

murder, that it might have opted to convict him of voluntary manslaughter instead.

Roberson did not have to establish that the jury definitely would have convicted him of

voluntary manslaughter instead of murder had it been properly instructed; he only had to

establish a reasonable probability of such a result. See French, 778 N.E.2d at 824. He

met that burden. Having established deficient performance and prejudice, Roberson has

proven his claim of ineffective assistance of trial counsel. The post-conviction court

erred in finding otherwise.

                                               Conclusion

          Roberson received ineffective assistance of trial counsel with respect to failing to

ensure that the jury was properly instructed regarding the elements of murder, voluntary

manslaughter, and the State’s burden of proof regarding sudden heat. We reverse the

denial of Roberson’s PCR petition and remand for further proceedings consistent with

this opinion.

          Reversed and remanded.

GARRARD, SR. J., and CRONE, J., concur.




5
    Roberson’s trial was held in 2007; Eichelberger was decided in 2006 and Sanders in 2005.
                                                    17
