MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Feb 11 2019, 11:11 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




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
C. Brent Martin                                          Angela Sanchez
Indianapolis, Indiana                                    Assistant Section Chief, Criminal
                                                         Appeals
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Duriel Jareau Williams,                                  February 11, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-1522
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Natalie Bokota,
Appellee-Respondent.                                     Magistrate Judge

                                                         The Honorable Samuel L. Cappas,
                                                         Judge
                                                         Trial Court Cause No.
                                                         45G04-1706-PC-4



Tavitas, Judge.


Court of Appeals of Indiana | Memorandum Decision 18A-PC-1522 | February 11, 2019               Page 1 of 16
                                               Case Summary

[1]   Duriel Williams appeals the post-conviction court’s (“PC court”) denial of his

      petition for post-conviction relief (“PCR”) after Williams’ conviction for

      murder. We affirm.


                                                     Issues

[2]   Williams raises one issue for our review, which we restate as two issues:


              I. Whether Williams’ trial counsel rendered ineffective
                 assistance by failing to object to the erroneous jury instruction
                 regarding voluntary manslaughter.


              II. Whether Williams’ appellate counsel rendered ineffective
                  assistance by failing to raise the issue of the erroneous jury
                  instruction regarding voluntary manslaughter on appeal.


                                                      Facts

[3]   The underlying facts of this cause were set out in Williams’ direct appeal in

      Williams v. State, No. 45A03-1507-CR-927 (Ind. Ct. App. Mar. 9, 2016):


              On January 28, 2013, Erich Beard was shot and killed in Lake
              County, Indiana. Prior to the shooting, Brandi Phillips, who had
              previously dated Williams, had been traveling around in Gary in
              Beard’s truck with Beard, Williams, and another woman.
              Phillips was present when Williams and Beard exited the truck
              and Williams pointed a gun at Beard and shot him three or four
              times. At some point after the shooting, Phillips was riding in a
              car with her aunt and saw Williams, who entered the car and told
              Phillips that she “better not have [sic] ran [her] mouth.”




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1522 | February 11, 2019   Page 2 of 16
      Williams, slip op. p. 1. Williams appealed, raising only the issue of whether the

      trial court abused its discretion in admitting certain testimony pursuant to

      Indiana Evidence Rule 804. Id. A panel of our court affirmed Williams’

      conviction.


[4]   Williams then filed his petition for PCR, followed by an amended petition for

      PCR, arguing that his trial counsel rendered ineffective assistance by failing to

      object to final jury instruction four (“Instruction 4”) and instruction eight

      (“Instruction 8”), regarding the lesser included offense of voluntary

      manslaughter. Williams also claimed that his appellate counsel similarly

      rendered ineffective assistance by failing to raise the same issue on appeal.


[5]   Instruction 4 stated:


                    Voluntary manslaughter is a lesser included offense to the
              crime of murder and is defined in pertinent part by statute as
              follows: A person who knowingly or intentionally kills another
              human being while acting under sudden heat by means of a
              deadly weapon commits voluntary manslaughter, a class A
              felony.


                    To convict the Defendant, the State must have proved
              each of the following elements:


                       1. The Defendant,


                       2. knowingly or intentionally,


                       3. killed another human being, to wit Erich Christopher
                          Beard,


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1522 | February 11, 2019   Page 3 of 16
                       4. by means of a deadly weapon, to wit: A firearm,


                       5. while acting under sudden heat,


                       6. on or about January 28, 2013.


      Appellant’s App. Vol. II pp. 204-05.


[6]   Instruction 8 stated:


                     First consider whether the Defendant is guilty of murder.
              If you find that the Defendant is guilty of murder, your job is
              completed and you need not consider any other lesser included
              offenses. If the State fails to prove the Defendant committed
              murder, you may consider whether the Defendant committed
              voluntary manslaughter, a lesser included offense.


      Id. at 205.


[7]   Subsequently, Williams filed a motion for summary disposition of the petition

      for PCR. The PC court denied Williams’ motion for summary disposition and

      Williams’ petition for PCR without a hearing. The PC court acknowledged

      that the instructions were incorrect because “[s]udden heat is not an element of

      the offense of voluntary manslaughter.” Id. Still, the PC court concluded that,

      because “the facts and evidence at trial did not support the existence of sudden

      heat[,]” the error was harmless. Id. at 207. As a result, the PC court found that

      neither Williams’ trial counsel nor appellate counsel rendered ineffective

      assistance. Williams now appeals.



      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1522 | February 11, 2019   Page 4 of 16
                                                   Analysis

[8]   Williams appeals the denial of his petition for PCR on summary disposition.

      Post Conviction Rule 1, Section 4(g) states:


              The court may grant a motion by either party for summary
              disposition of the petition when it appears from the pleadings,
              depositions, answers to interrogatories, admissions, stipulations
              of fact, and any affidavits submitted, that there is no genuine
              issue of material fact and the moving party is entitled to
              judgment as a matter of law. The court may ask for oral
              argument on the legal issue raised. If an issue of material fact is
              raised, then the court shall hold an evidentiary hearing as soon as
              reasonably possible.


      See Binkley v. State, 993 N.E.2d 645, 650 (Ind. Ct. App. 2013) (stating “‘under

      the plain language of subsection (g) [of Post-Conviction Rule 1, Section 4], a

      court may grant summary disposition after a motion by either party and after

      considering the pleadings and other evidence submitted’”) (quoting Allen v.

      State, 791 N.E.2d 748, 752-53 (Ind. Ct. App. 2003) (internal citations omitted),

      trans. denied). On review,


              An appellate court reviews the grant of a motion for summary
              disposition in post-conviction proceedings on appeal in the same
              way as a motion for summary judgment. Thus summary
              disposition, like summary judgment, is a matter for appellate de
              novo determination when the determinative issue is a matter of
              law, not fact.


      McClure v. State, 71 N.E.3d 845, 847 (Ind. Ct. App. 2017) (quoting Norris v.

      State, 896 N.E.2d 1149, 1151 (Ind. 2008)), trans. denied.


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1522 | February 11, 2019   Page 5 of 16
[9]    We note that Williams’ brief focuses on the issue of “[w]hether it was harmless

       error to give fundamentally erroneous instructions on the lesser included

       offense of voluntary manslaughter.” Appellant’s Br. p. 4. In Bailey v. State, our

       supreme court addressed such free standing claims and held:


               Any issue set forth in a post-conviction petition must be raised
               within the purview of the post-conviction rules, e.g., deprivation
               of the Sixth Amendment right to effective assistance of counsel,
               or be an issue demonstrably unavailable to the petitioner at the
               time of his trial and direct appeal. Therefore, in a post-
               conviction petition an allegation of the denial of the petitioner’s
               due process rights may not be raised in the “free-standing” form
               of an allegation of fundamental error.


       472 N.E.2d 1260, 1263 (Ind. 1985). While we do address Williams’ argument,

       we do it in the course of determining whether Williams’ trial counsel and

       appellate counsel rendered ineffective assistance. We decline to address this

       issue independently as it is a free standing claim and not one of the issues we

       will consider in a petition for PCR. See Lindsey v. State, 888 N.E.2d 319, 325

       (Ind. Ct. App. 2008), trans. denied.


                                                  A. Trial Counsel

[10]   Williams argues his trial counsel rendered ineffective assistance for failing to

       object to the erroneous jury instructions. To prevail on a claim of ineffective

       assistance of counsel, a petitioner must demonstrate both that: (1) his or her

       counsel’s performance was deficient, and (2) 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
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1522 | February 11, 2019   Page 6 of 16
       (1984)), reh’g denied, cert. denied, 534 U.S. 830, 122 S. Ct. 73 (2001). The failure

       to satisfy either prong will cause the claim to fail. Grinstead v. State, 845 N.E.2d

       1027, 1031 (Ind. 2006). Ineffective assistance of counsel claims, thus, can be

       resolved by a prejudice analysis alone. Id.


[11]   An attorney’s performance is deficient if it falls below an objective standard of

       reasonableness based on prevailing professional norms. Woodson v. State, 961

       N.E.2d 1035, 1041 (Ind. Ct. App. 2012), trans. denied. A strong presumption

       arises that counsel rendered adequate assistance and made all significant

       decisions in the exercise of reasonable professional judgment. McCullough v.

       State, 973 N.E.2d 62, 74 (Ind. Ct. App. 2012), trans. denied. “[A] defendant

       must offer strong and convincing evidence to overcome this presumption.” Id.

       Isolated poor strategy, inexperience, or bad tactics does not necessarily

       constitute ineffective assistance of counsel. Id.


[12]   In order to demonstrate prejudice, “the defendant must show that there is a

       reasonable probability that, but for counsel’s unprofessional errors, the result of

       the proceeding would have been different. A reasonable probability is a

       probability sufficient to undermine confidence in the outcome.” Weisheit v.

       State, 109 N.E.3d 978, 983 (Ind. 2018) (quoting Strickland, 466 U.S. at 694, 104

       S. Ct. 2052).


[13]   In deciding whether counsel rendered ineffective assistance, we will begin by

       looking at the alleged error. Williams argues that his counsel’s performance

       was deficient by failing to object to the erroneous final jury instructions, and


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1522 | February 11, 2019   Page 7 of 16
       accordingly, that Williams was prejudiced. “The trial court has broad

       discretion as to how to instruct the jury, and we generally review that discretion

       only for abuse.” Kane v. State, 976 N.E.2d 1228, 1231 (Ind. 2012) (citing Mayes

       v. State, 744 N.E.2d 390, 394 (Ind. 2001)). “Where, however . . . the appellant’s

       challenge to the instruction is based on the first of our three considerations—an

       argument that the instruction was an incorrect statement of the law—we review

       the trial court’s interpretation of that law de novo.” Kane, 976 N.E.2d at 1231

       (citing LaPorte Cmty. Sch. Corp. v. Rosales, 963 N.E.2d 520, 523 (Ind. 2012)).


[14]   The PC court agreed that Instruction 4 was erroneous, as did the State. See

       Appellee’s Br. p. 13 (stating that “the State agreed only that Final Instruction 4

       was erroneous . . .”). We agree that Instruction 4 incorrectly stated the law.

       The trial court was incorrect to instruct the jury that sudden heat is an element

       of voluntary manslaughter. See Watts v. State, 885 N.E.2d 1228, 1232 (Ind.

       2008) (holding that, with voluntary manslaughter, “sudden heat is a mitigating

       factor, not an element, that the State must prove in addition to the elements of

       murder. Though counterintuitive, it is logical: if a mitigating factor is present,

       the offense is certainly lesser than, if not included in, the greater offense”)

       (emphasis supplied). Indeed, the voluntary manslaughter statute itself identifies

       sudden heat as a mitigating factor. Indiana Code Section 35-42-1-3 states:


               (a) A person who knowingly or intentionally:


                        (1) kills another human being; or




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1522 | February 11, 2019   Page 8 of 16
                        (2) except as provided in section 6.5 of this chapter, kills a
                            fetus in any stage of development;


               while acting under sudden heat commits voluntary
               manslaughter, a Level 2 felony.


               (b) The existence of sudden heat is a mitigating factor that
                   reduces what otherwise would be murder under section 1(1)
                   of this chapter to voluntary manslaughter.


[15]   Similarly, with Instruction 8, it was incorrect to instruct the jury that if it found

       that the State did not prove Williams committed murder, it could then consider

       whether Williams committed voluntary manslaughter. See McDowell v. State,

       102 N.E.3d 924, 935-36 (Ind. Ct. App. 2018) (summarizing our supreme court’s

       conclusion in Watts, that “[w]ith voluntary manslaughter, the failure to prove

       one of the essential elements of the greater offense of murder is also the failure

       to prove one of the essential elements of the lesser offense of voluntary

       manslaughter”), trans. denied. In other words, the jury could have considered

       both murder and voluntary manslaughter simultaneously if there was evidence

       of sudden heat.


[16]   Despite the erroneous jury instructions, and trial counsel’s failure to object, the

       PC court found that Williams was not prejudiced by his trial counsel’s

       performance. Consequently, we will consider whether there is a reasonable

       probability that, but for trial counsel’s errors, the result of the proceeding would

       have been different. See Johnson v. State, 901 N.E.2d 1168, 1174 (Ind. Ct. App.

       2009) (finding that, because the violation at issue was harmless error, the result

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1522 | February 11, 2019   Page 9 of 16
       of the trial would not have been different, and therefore, the defendant could

       not demonstrate prejudice).


[17]   Determining whether Williams was prejudiced necessarily requires us to

       consider whether there was evidence of sudden heat. Because Williams was

       convicted of murder, and not the lesser included offense of voluntary

       manslaughter, we must determine whether there was evidence of sudden heat to

       justify the instruction for voluntary manslaughter. If there was no evidence of

       sudden heat, the instruction on voluntary manslaughter was harmless, because

       a conviction on the same could not have been sustained. See Wilkins v. State,

       716 N.E.2d 955, 957 (Ind. 1999) (finding that a voluntary manslaughter

       instruction in the absence of sudden heat was harmless because the “instruction

       merely presented the jury with another lesser option that it rejected”). Evidence

       of sudden heat is a key consideration when determining whether an instruction

       on voluntary manslaughter should be given because,


               [a]lthough [v]oluntary [m]anslaughter is a lesser-included offense
               of [m]urder, it is an atypical example of a lesser-included offense.
               In the case of [v]oluntary [m]anslaughter, sudden heat is a
               mitigating factor that the State must prove in addition to the
               elements of murder. Sudden heat must be separately proved and,
               therefore, if there is no serious evidentiary dispute over sudden
               heat, it is error for a trial court to instruct a jury on voluntary
               manslaughter in addition to murder.


       Suprenant v. State, 925 N.E.2d 1280, 1282 (Ind. Ct. App. 2010), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1522 | February 11, 2019   Page 10 of 16
[18]   Sudden heat “exists when a defendant is ‘provoked by anger, rage, resentment,

       or terror, to a degree sufficient to obscure the reason of an ordinary person,

       prevent deliberation and premeditation, and render the defendant incapable of

       cool reflection.’” Brantley v. State, 91 N.E.3d 566, 572 (Ind. 2018) (quoting Isom

       v. State, 31 N.E.3d 469, 486 (Ind. 2015), cert. denied, 136 S. Ct. 1161 (2016)).


[19]   In reviewing the jury trial transcript, the evidence of conflict between Williams

       and Beard includes the following:


               1. Brian Ragulen, a witness, told Officer Nielsen that just before
                  the shooting, he overheard an individual shout “B****, why
                  won’t you let me see her.” Tr. Vol. I p. 156. At the trial,
                  Ragulen also denied telling Officer Nielsen about this
                  argument.


               2. Brandi Phillips, Williams’ girlfriend, stated that on January
                  28, after Williams and Beard came to pick her up, they argued
                  several times. Phillips could not testify as to the specifics
                  regarding the argument because she “really wasn’t paying
                  attention to it like that.” Tr. Vol. II p. 104. However, Phillips
                  did state that the group “ran down 5th, and something was
                  said[,]” and specifically that “[Williams] and [Beard] was [sic]
                  arguing.” Id. Phillips stated the men “had words[,]” but she
                  did not recall what those words were. Id. at 112.


               3. At some point during their drive, Williams went to his
                  mother’s house. Williams became angry because
                  “[s]omebody had busted out his mama [sic] window, and he
                  was going crazy. His mama was trying to calm him down.”
                  Id. at 105. At this point, Williams got a gun from inside his
                  mother’s house.



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1522 | February 11, 2019   Page 11 of 16
        4. After leaving Williams’ mother’s house, the argument
           between Beard and Williams continued. The argument,
           according to Phillips, centered around Williams’ perception
           that Beard was “reaching for something.” Id. at 112.
           According to Phillips, Beard wanted Williams to take the two
           women in the vehicle home that evening, but Williams
           declined.


        5. Phillips testified that Williams “pulled a gun” on Beard
           stating: “They had some words. [Williams] was driving,
           stopped, put it in drive [sic], got out the truck, pulled the gun
           on [Beard].” Id. at 116. Williams then told Beard that he
           “loved him.” Id. at 117. During this time, Phillips testified
           that Beard had his hand on “[a] Seagram’s bottle.” Id. at 154.
           Williams was also quoted as saying to Beard “You don’t
           think I won’t” around this same time. Id. Williams then got
           back in the car and the group went to a “crackhead[‘s]” house
           on Taft street. Id. at 118.


        6. Once at the house, Williams and Beard continued arguing.
           According to Phillips, “[Williams] told [Beard] if he do [sic]
           something, that he was going to get him. [Beard] walked
           back to his truck, got in a – [Williams] pull[ed] the gun out
           and [said], ‘If you pull out, I’m going to fan this up.’” Id. at
           124.


        7. Then, “[Beard] . . .walked up to [Williams], [Williams] shot
           him.” Id. Phillips said that Beard just walked up to Williams
           “like a normal person.” Id. at 129. Phillips seemed to believe
           that Williams may have thought Beard was going to “do
           something” to Williams because “Anybody would think
           that.” Id. Beard walked up to Williams very close—
           approximately three inches away from Williams’ face.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1522 | February 11, 2019   Page 12 of 16
               8. When asked if Williams said anything during the exchange,
                  Phillips testified “[Williams] told him he love[d] him, ‘Don’t
                  do it. Don’t do it.’ I mean, I don’t remember all of it.” Id. at
                  130. Beard’s hands were down at his side when he
                  approached Williams.


               9. Finally, there was also testimony from Ernest Eskridge, who
                  testified that earlier in the evening, approximately forty-five
                  minutes before the shooting, he and Williams got into a
                  “verbal argument.” Tr. Vol I p. 96.


[20]   We agree with the PC court that, while there was evidence of ongoing conflict

       between Williams and Beard, and that Williams was angry the evening of the

       shooting, this does not amount to a finding of sudden heat. We believe an

       example from our supreme court is illustrative. In Brantley, our supreme court

       found evidence of sudden heat, “although scant[,]” when:


               Brantley consistently testified that the situation in his home on
               July 14, 2014, was chaotic. Central to this chaos was Bruce,
               whose temper raged and anger oscillated between Martha and
               Brantley. But this situation was not a one-off occurrence, and it
               would be misguided to think of it in a vacuum. Brantley’s
               relationship with Bruce was strained. Bruce saw Brantley as a
               financial burden on him and Martha. Brantley had witnessed
               Bruce’s domestic violence against his sister and nephew.
               Brantley also knew that Bruce had a history of mental illness.
               And crucially, Brantley knew that Bruce kept sharp objects in his
               chair. So, when Bruce angrily rose from his chair, after telling
               Brantley he was “getting ready to get rid of all his problems right
               now” and Brantley’s eye caught something shiny in Bruce’s hand,
               it was well within the jury’s province to consider whether
               Brantley experienced terror and had the sudden impetus to kill.



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1522 | February 11, 2019   Page 13 of 16
       Brantley, 91 N.E.3d at 572.


[21]   In Williams’ case, the evidence was simply that Williams and Beard argued the

       evening Williams shot Beard. There was no evidence of the actual substance of

       the argument between Williams and Beard. There was no evidence that their

       relationship, generally, was strained. In fact, Williams told Beard he loved him

       earlier in the night. Every argument or disagreement between parties does not

       amount to sudden heat. See Suprenant, 925 N.E.2d at 1282 (concluding “[a]nger

       alone is not sufficient to support an instruction on sudden heat. . . . Nor will

       words alone ‘constitute sufficient provocation to warrant a jury instruction on

       voluntary manslaughter,’ and this is ‘especially true’ when the words at issue

       are not intentionally designed to provoke the defendant, such as fighting

       words.”) (quoting Allen v. State, 716 N.E.2d 449, 452 (Ind. 1999)).


[22]   Because the evidence did not support the existence of sudden heat, there is no

       reasonable probability that the outcome of the jury trial would have been

       different. Accordingly, Williams was not prejudiced by trial counsel’s failure to

       object to the erroneous instructions. The PC court properly denied Williams’

       claim of ineffective assistance of trial counsel.


                                               B. Appellate Counsel

[23]   Williams also argues that his appellate counsel rendered ineffective assistance

       because “Williams was entitled to the instructions on voluntary manslaughter[,

       therefore,] appellate counsel was ineffective for not raising the issue on direct

       appeal.” Appellant’s Br. p. 18. Had he done so, according to Williams, “the


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1522 | February 11, 2019   Page 14 of 16
       result of the appeal would have been different as the erroneous instructions

       given by the lower court would have been found to constitute fundamental

       error.” Id.


[24]   “Our standard of review for claims of ineffective assistance of appellate counsel

       is the same as for trial counsel’s ineffective assistance.” Jervis v. State, 28 N.E.3d

       361, 369 (Ind. Ct. App. 2015) (citing Fisher v. State, 810 N.E.2d 674, 676 (Ind.

       2004)), trans. denied. There are three categories of alleged appellate counsel

       ineffectiveness. See Bieghler v. State, 690 N.E.2d 188, 193 (Ind. 1997), cert.

       denied, 525 U.S. 1021, 119 S. Ct. 550 (1998). The three categories are: (1)

       denying access to appeal; (2) waiver of issues; (3) failure to present issues well.

       See id. Williams’ claim falls in the second category, because he argues that

       appellate counsel did not raise a particular issue. “When assessing claims

       under the second category, reviewing courts should be particularly deferential

       to counsel’s strategic decision to exclude certain issues in favor of others, unless

       such a decision was unquestionably unreasonable.” Daugherty v. State, 52

       N.E.3d 885, 890 (Ind. Ct. App. 2016), trans. denied.


[25]   Because we find that trial counsel did not render ineffective assistance by failing

       to challenge the erroneous jury instructions, we find that appellate counsel was

       similarly not ineffective. Even if appellate counsel had raised the issue on direct

       appeal, this court would have reached the same conclusion that we have here.

       Accordingly, Williams has not met his burden in proving that he was

       prejudiced by appellate counsel’s performance. The PC court properly denied

       Williams’ claim of ineffective assistance of appellate counsel.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1522 | February 11, 2019   Page 15 of 16
                                              Conclusion

[26]   Williams’ trial counsel and appellate counsel did not render ineffective

       assistance. Accordingly, the PC court did not err in denying Williams’ petition

       for PCR. We affirm.


[27]   Affirmed.


       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1522 | February 11, 2019   Page 16 of 16
