MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                             Jul 15 2015, 6:28 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stephen T. Owens                                          Gregory F. Zoeller
Public Defender of Indiana                                Attorney General of Indiana

Victoria Christ                                           Kelly A. Miklos
Deputy Public Defender                                    Deputy Attorney General
Indianapolis, Indiana                                     Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

John W. Taylor, IV,                                       July 15, 2015

Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          20A03-1411-PC-396
        v.                                                Appeal from the Elkhart Circuit
                                                          Court
State of Indiana,                                         The Honorable Terry C. Shewmaker,
Appellee-Respondent.                                      Judge

                                                          Cause No. 20C01-1308-PC-52




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1411-PC-396 | July 15, 2015            Page 1 of 13
[1]   John W. Taylor, IV, appeals the denial of his petition for post-conviction relief.

      Taylor raises one issue which we revise and restate as whether the post-

      conviction court erred in denying his petition for relief. We affirm.


                                      Facts and Procedural History

[2]   The relevant facts as discussed in Taylor’s direct appeal from his three

      convictions of attempted murder follow:

              On October 26, 2011, Chamar Jackson (Jackson) and Avery Copeland
              (Copeland) walked to a fast food restaurant in Elkhart County,
              Indiana to visit their friend, Chynna Sipili (Sipili), who was employed
              there. When they arrived at the restaurant, Taylor was standing near
              the soda dispensers. Taylor and Sipili had just split up the previous
              day after Sipili had sent him a text message informing him that she
              needed space. When Jackson approached the counter to speak with
              Sipili, he was stared down by Taylor who told him to stop talking to
              his girlfriend. Jackson continued to talk to Sipili, and Taylor stormed
              angrily out of the restaurant. Thereafter, Jackson and Copeland
              returned to Copeland’s house. Michael Raeder (Raeder) noticed them
              standing outside the residence and pulled up in his vehicle. Jackson
              and Copeland got in Raeder’s car, intending to smoke marijuana
              together.
              Approximately ten to thirty minutes after Jackson and Copeland had
              left the fast food restaurant, Taylor returned and angrily confronted
              Sipili. He told her, “I swear to God after work I’ll kill you and them
              niggas.” (Transcript p. 340). Taylor again stormed out of the
              restaurant.
              Meanwhile, Jackson, Copeland, and Raeder were sitting in Raeder’s
              vehicle. Raeder was in the driver’s seat, Jackson in the front passenger
              seat, and Copeland was in the rear seat on the driver’s side. While
              they were talking, Taylor drove up in his car. He pulled up next to
              Raeder’s car and jumped out, carrying a large black rifle. He rapidly
              approached Raeder’s vehicle. He walked to the driver’s side of the car
              and stopped approximately ten feet away. Without saying anything,
              Taylor first started firing into the passenger compartment where

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               Copeland was sitting. He then fired into the driver’s seat. The vehicle
               became “riddled with bullets” and both of the driver’s side windows
               were shot out. (Tr. p. 490). Jackson jumped out of the car and rolled
               underneath, Copeland laid flat on the backseat, and Raeder curled up
               into a ball with his hands up, then opened the door of the car and tried
               to crawl to the trunk. As Taylor walked around the car firing the rifle,
               he lowered his aim from the window level down into the body of the
               car. Following the shooting, police officers and ambulances arrived at
               Copeland’s house. Jackson was not injured, Copeland was shot in the
               back, and Raeder received a shrapnel wound to the head and a bullet
               penetrated his right arm above the elbow.
               After the shooting, Taylor went to his sister’s apartment where he
               spoke with Sarah Lemon (Lemon). He told Lemon that he thought he
               had killed Jackson. Police officers also found a note, written by
               Taylor, which read, “I’m Killin’ niggas put em’ in the dirt . . . The
               choppa is under the cou[c]h . . . Domo.” (State’s Exh. 21). The police
               searched Taylor’s sister’s home and found a black rifle under her
               couch in the living room. Ten shell casings and bullet fragments
               recovered from the scene were later determined to have been fired
               from the rifle recovered by the police.


      Taylor v. State, No. 20A03-1208-CR-365, slip op. at 2-4 (Ind. Ct. App. April 3,

      2013).


[3]   On October 31, 2011, the State charged Taylor with three counts of attempted

      murder. Id. at 4. A jury found Taylor guilty as charged. Id. On August 9,

      2012, the court sentenced Taylor to thirty-five years on Count I, forty years on

      Count II, to be served consecutive to Count I, and forty years on Count III, to

      be served concurrent with Count II. Id. Taylor appealed and argued that the

      State failed to present sufficient evidence. Id. at 4-6. Specifically, Taylor

      argued that because the injuries were not severe, Taylor did not have the

      requisite intent to kill and merely committed a reckless act by firing a rifle at

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      close range to people. Id. at 5. In addressing Taylor’s argument that the

      evidence was insufficient on direct appeal, this court stated:

              We find that the fact that the victims’ injuries were not more severe
              merely proves that Taylor is a bad marksman; his actions and words
              clearly belie his intent to kill the three occupants of the vehicle. When
              he approached Raeder’s car, he walked up to the driver’s side and
              started firing indiscriminately. He methodically walked around the
              car, moving his aim from window level down to the body of the car.
              When he stopped firing, the vehicle was riddled with bullets and both
              of the driver’s side windows were shot out. The rifle was so powerful
              that a bullet penetrated the outside wall of Copeland’s residence, 172
              feet away, and was located in an inner hallway of the house. Prior to
              the shooting, Taylor had told Sipili that he would kill her “and them
              niggas.” (Transcript p. 340). Later, after the shooting, Taylor told
              Lemon that he thought he had killed Jackson. And in a note, Taylor
              stated, “I’m Killin’ niggas[.]” (State's Exh. 21).


      Id. at 5-6. This court affirmed. Id. at 6.


[4]   On August 5, 2013, Taylor filed a petition for post-conviction relief. Taylor by

      counsel later filed an amended petition and alleged that his trial counsel was

      ineffective.


[5]   On June 12, 2014, the court held a hearing. On October 21, 2014, the court

      denied Taylor’s petition. The order states in part:

              21. [Taylor] alleges that his trial counsel . . . was ineffective for failing
              to request an instruction on a lesser-included offense of aggravated
              battery for Counts I and II, and attempted aggravated battery for
              Count III. [Taylor] contends that aggravated battery is an inherently
              lesser-included offense to attempted murder.
              22. In Noble v. State, 725 N.E.2d 842 (Ind. 2000), the Indiana Supreme
              Court, however, found that the crime of battery is not an inherently

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           included offense of attempted murder, but that under the specific facts
           presented in that case, battery was a factually included offense of
           attempted murder. Noble, 725 N.E.2d at 846-47. Compare to the
           holding in Meriweather v. State, 659 N.E.2d 133 (Ind. Ct. App. 1995),[
           trans. denied,] in which the Court found that the offense of attempted
           aggravated battery is an inherently lesser included offense of attempted
           murder. Meriweather, [659] N.E.2d at 142. Then, in Young v. State, 11
           N.E.3d 964 (Ind. Ct. App. 2014), the Indiana Court of Appeals found
           that under the circumstances of that particular case, a conviction of
           attempted aggravated battery as a lesser included offense to murder
           was not appropriate. Young, 11 N.E.2d 3d [sic] at 967-68.[1] Clearly,
           this issue is not well settled by existing case law.
           23. [Trial counsel] testified during the post conviction hearing that he
           did not believe aggravated battery was an inherently lesser-included
           offense to attempted murder. [Taylor’s] opinion that [his trial
           counsel’s] belief in this regard is incorrect is not fully supported by case
           law. Rather, as discussed hereinabove, the case law is confusing:
           aggravated battery may be inherently included or factually included,
           but in any event, in [sic] depends on the factual circumstances of each
           case. Further, in either event, aggravated battery is a crime requiring a
           knowing or intentional culpability, not recklessness. [Trial counsel]
           testified that his arguments at trial were that [Taylor] did not act with
           the specific intent to kill; but argued for reckless rather than intentional
           conduct. [Trial counsel] said that he believed the State’s evidence was
           pretty good and that his strategy was to diffuse the evidence of intent
           to kill, so he thought his “reckless” argument was the way to go.
           [Trial counsel] also said that he thought battery made no sense because
           the facts were so egregious, and that if he had to do it again, he would
           approach the defense the same way.
           24. The court concludes that [trial counsel] sufficiently articulated a
           strategy by indicating that he made a professional decision about what
           approach to use in defending [Taylor], and based on a review of the
           relevant case law, it cannot be said that [trial counsel’s] performance
           was deficient for not seeking a lesser included offense instruction.




1
    The Indiana Supreme Court later vacated the opinion of Young v. State, 11 N.E.3d 964 (Ind. Ct. App. 2014).


Court of Appeals of Indiana | Memorandum Decision 20A03-1411-PC-396 | July 15, 2015               Page 5 of 13
        25. The next issue for the court is whether there is a reasonable
        probability that the jury would have reached a different decision and
        not convicted [Taylor] for attempted murder, but would have
        convicted him of the lesser offense of aggravated battery if such an
        instruction would have been given. [Taylor] argues that, by not asking
        for a lesser included offense of aggravated battery, [trial counsel] did
        not provide the jury with a realistic verdict option. [Trial counsel] is a
        veteran attorney having practiced criminal defense in Indiana since
        1979. He has been the Chief Public Defender in Elkhart County since
        1985. In that time he has defended approximately twenty (20)
        individuals charged with Murder, and won acquittals in at least two (2)
        of . . . those cases.
        26. [Taylor] contends that there is a reasonable probability that the
        jury would have convicted on aggravated battery, if given that option,
        because the evidence at trial was that [Taylor] was angry before the
        crime but did not continue to shoot the victims when he had the
        opportunity to do so. In considering [Taylor’s] sufficiency of the
        evidence argument on direct appeal, the Indiana Court of Appeals
        affirmed [Taylor’s] convictions and characterized the State’s evidence
        as follows:
        “[Taylor] walked up to the driver’s side and started firing
        indiscriminately. He methodically walked around the car, moving his
        aim from window level down to the body of the car. When he stopped
        firing, the vehicle was riddled with bullets and both of the driver’s side
        windows were shot out. The rifle was so powerful that a bullet
        penetrated the outside wall of Copeland’s residence, 172 feet away,
        and was located in an inner hallway of the house. Prior to the
        shooting, Taylor had told Sipili that he would kill her ‘and them
        niggas.’ Later, after the shooting, Taylor told Lemon that he thought
        he had killed Jackson. And in a note, Taylor stated, ‘I’m Killin
        niggas[.]” Taylor v. State, 985 N.E.2d 373 (Ind. Ct. App. 2013),
        unpublished and cited for the limited purpose of establishing the law of the case.
        27. Considering the overwhelming and powerful evidence in this case,
        the court does not find that there is a reasonable probability that the
        outcome would have been different had the jury been presented with
        an instructions [sic] on aggravated battery. [Taylor] shot at the victims
        at point blank range with a semi-automatic rifle. The jury found
        beyond a reasonable doubt that [Taylor] acted with a specific intent to
        kill. The evidence was found to be sufficient to sustain the

Court of Appeals of Indiana | Memorandum Decision 20A03-1411-PC-396 | July 15, 2015     Page 6 of 13
              convictions. [Taylor] has failed to prove prejudice or that he received
              ineffective assistance of trial counsel.


      Appellant’s Appendix at 76-79.


                                                   Discussion

[6]   Before discussing Taylor’s allegations of error, we note the general standard

      under which we review a post-conviction court’s denial of a petition for post-

      conviction relief. The petitioner in a post-conviction proceeding bears the

      burden of establishing grounds for relief by a preponderance of the evidence.

      Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); 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. Fisher, 810 N.E.2d

      at 679. 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. Id. Further, the post-conviction court in this case

      entered findings of fact and conclusions thereon in accordance with Indiana

      Post-Conviction 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 has been made.” Id. In this review,

      we accept findings of fact unless clearly erroneous, but we accord no deference

      to conclusions of law. Id. The post-conviction court is the sole judge of the

      weight of the evidence and the credibility of witnesses. Id.




      Court of Appeals of Indiana | Memorandum Decision 20A03-1411-PC-396 | July 15, 2015   Page 7 of 13
[7]   Taylor argues that his trial counsel should have tendered instructions on

      aggravated battery and attempted aggravated battery as class B felonies as lesser

      included offenses of attempted murder. He asserts that the post-conviction

      court erred by concluding that trial counsel’s strategy was informed because

      counsel did not consider and reject the notion of tendering lesser included

      options. Taylor posits that the case law was not unclear when he was tried, and

      that there was a serious evidentiary dispute regarding his intent to kill so the

      court would have granted a request for the lesser included offense instructions

      under Wright v. State, 658 N.E.2d 563 (Ind. 1995).


[8]   The State argues that case law is not clear regarding whether aggravated battery

      or attempted aggravated battery is a lesser included offense of attempted

      murder, and that a trial court may have properly denied such instructions based

      on Indiana Supreme Court precedent. It also contends that trial counsel’s

      strategy was reasonable and if successful would have resulted in a full acquittal.

      Based upon the evidence, the State contends there was no reasonable possibility

      that the jury would have convicted Taylor of a lesser included offense and

      acquitted him of attempted murder.


[9]   Generally, to prevail on a claim of 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. French v. State, 778

      N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104

      S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is deficient if it falls

      below an objective standard of reasonableness based on prevailing professional

      Court of Appeals of Indiana | Memorandum Decision 20A03-1411-PC-396 | July 15, 2015   Page 8 of 13
       norms. Id. 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.

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

       will cause the claim to fail. French, 778 N.E.2d at 824. Most ineffective

       assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.


[10]   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, 1072 (Ind. 2001). “[C]ounsel’s performance

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

       evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73

       (Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will

       not support a claim of ineffective assistance of counsel. Clark v. State, 668

       N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.

       Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second

       guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). We “will not lightly

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

       as counsel should be given deference in choosing a trial strategy which, at the

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

       40, 42 (Ind. 1998).




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[11]   At the post-conviction hearing, while Taylor’s trial counsel testified that he did

       not consider tendering instructions on aggravated battery or attempted

       aggravated battery, he testified that his strategy was to demonstrate that Taylor

       “basically committed an act that was reckless and not an act of attempted

       murder” and that he was trying to negate specific intent. Post-Conviction

       Transcript at 7. He stated:

               I – I felt that when one goes to trial you have to make a . . . realistic
               argument. You have to present something because that’s the client’s –
               it’s his right to have that done. And the only thing I could attach my
               brain to was this was an act of anger, but there was no desire to
               murder these people.


       Id. at 19. Trial counsel indicated that he used the word “reckless” throughout

       the trial beginning with voir dire and that he attempted to argue that Taylor was

       acting only recklessly. Id. at 23. He stated that the statute governing

       aggravated battery required a knowing or intentional infliction of injury and

       that a mere reckless infliction of injury would not be sufficient to convict for

       aggravated battery. Trial counsel also indicated that if he argued Taylor acted

       recklessly and then requested a battery instruction, “[i]t would cancel any

       recklessness that might have been able to be portrayed,” that he “was not

       confident in the defense,” and that the “jury would have been very unimpressed

       with that switch.” Id. at 26. Trial counsel indicated that it was logical to

       conclude that the jury must have thought that Taylor intended to kill but was a

       bad shot. When asked if it was possible that he did not consider battery because

       battery has the requirement of acting knowingly or intentionally, trial counsel


       Court of Appeals of Indiana | Memorandum Decision 20A03-1411-PC-396 | July 15, 2015   Page 10 of 13
       answered: “I thought the facts were so egregious that the concept of battery was

       ridiculous and that’s more on hindsight than it is at the time, but I can say that

       today that it just made no sense.” Id. at 32. Trial counsel also testified:

               And quite frankly, if I had to try this case again, I’d probably do it the
               same way. Because there was no way, in my opinion, that you can be
               10 feet from someone with an SKS and but for the good steel made by
               the Ford Corporation and Lincoln Town Car it could have gone a
               different way. There was a round in the headrest. There was
               testimony that the back wound sustained by one of the individuals was
               because he was down in a, I believe, cowering position was the term
               that was used. I’m saying if you don’t kill somebody at that range
               with an SKS with that number of rounds fired you’re either lucky or a
               bad shot or something intervened. I don’t know how to put it any
               other way.


       Id. at 29. During cross-examination, trial counsel was asked if he would try the

       case differently and answered:

               That’s a good question. I suppose this has to be – well, it is
               speculation. I guess the real answer would be I don’t know. But
               you’ve tried cases against me, and I don’t think you’ve ever seen
               philosophy, pie in the sky, nonsense come out of me. Maybe today,
               but what I’m saying to you is I try cases realistically, and that’s what I
               tried to do with this case here.


       Id. at 36. We cannot say that the overall strategy of defense counsel renders his

       performance deficient.


[12]   However, even assuming that the performance of Taylor’s trial counsel was

       deficient, Taylor has failed to show that he was prejudiced. The Indiana

       Supreme Court has held:


       Court of Appeals of Indiana | Memorandum Decision 20A03-1411-PC-396 | July 15, 2015   Page 11 of 13
               When a defendant requests an instruction covering a lesser-included
               offense, a trial court applies the three-part analysis set forth in Wright v.
               State, 658 N.E.2d 563, 566-67 (Ind. 1995). The first two parts require
               the trial court to determine whether the offense is either inherently or
               factually included in the charged offense. Id. If so, the trial court must
               determine whether there is a serious evidentiary dispute regarding any
               element that distinguishes the two offenses. Id. at 567; see also Brown v.
               State, 703 N.E.2d 1010, 1019 (Ind. 1998). Wright held that “if, in view
               of this dispute, a jury could conclude that the lesser offense was
               committed but not the greater, then it is reversible error for a trial court
               not to give an instruction, when requested, on the inherently or
               factually included lesser offense.” Wright, 658 N.E.2d at 567.


       Wilson v. State, 765 N.E.2d 1265, 1271 (Ind. 2002). See also Taylor v. State, 840

       N.E.2d 324, 337 n.4 (Ind. 2006) (addressing a petitioner’s claim of ineffective

       assistance because trial counsel failed to tender a lesser included instruction and

       noting that petitioner might conceivably have been entitled to an instruction if

       he was able to satisfy the requirements of Wright v. State, 658 N.E.2d 563 (Ind.

       1995)).


[13]   The record reveals that Sipili testified that Taylor said: “I swear to God after –

       after work or something I’ll kill you and them niggas or something like that.”

       Trial Transcript at 340. Taylor later pulled up to a vehicle containing Raeder,

       Jackson, and Copeland, exited his car, and started shooting a SKS or large rifle

       seconds later. During direct examination, Jackson testified that Taylor was

       “[n]ot even like 10 feet” away when he started shooting. Id. at 302. The

       vehicle became “riddled with bullets.” Id. at 490. Based upon the record, we

       conclude that there was no serious evidentiary dispute regarding whether

       Taylor intended to kill the victims. The evidence was overwhelming and

       Court of Appeals of Indiana | Memorandum Decision 20A03-1411-PC-396 | July 15, 2015   Page 12 of 13
       evinced an intent to kill. We cannot say that Taylor demonstrated prejudice

       from the alleged error.


                                                    Conclusion

[14]   For the foregoing reasons, we affirm the post-conviction court’s denial of

       Taylor’s petition.


       Crone, J., and Pyle, J., concur.




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