Kenneth W. Wagener v. State of Indiana ( 2012 )


Menu:
  • Pursuant to Ind. Appellate Rule 65(D),
    FILED
    this Memorandum Decision shall not
    be regarded as precedent or cited
    before any court except for the                              Aug 22 2012, 9:38 am
    purpose of establishing the defense of
    res judicata, collateral estoppel, or the
    CLERK
    law of the case.                                                   of the supreme court,
    court of appeals and
    tax court
    ATTORNEYS FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:
    STEPHEN T. OWENS                                 GREGORY F. ZOELLER
    Public Defender of Indiana                       Attorney General of Indiana
    J. JEFFREYS MERRYMAN, JR.                        JODI KATHRYN STEIN
    Deputy Public Defender                           Deputy Attorney General
    Indianapolis, Indiana                            Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    KENNETH W. WAGENER,                              )
    )
    Appellant-Petitioner,                     )
    )
    vs.                                )      No. 34A05-1202-PC-47
    )
    STATE OF INDIANA,                                )
    )
    Appellee-Respondent.                      )
    APPEAL FROM THE HOWARD SUPERIOR COURT
    The Honorable William C. Menges, Jr., Judge
    Cause No. 34D01-0701-PC-65
    August 22, 2012
    MEMORANDUM DECISION - NOT FOR PUBLICATION
    ROBB, Chief Judge
    Case Summary and Issue
    Kenneth Wagener appeals the post-conviction court’s denial of his petition for
    post-conviction relief.   He raises one issue, which we restate as whether the post-
    conviction court erred in concluding that he did not receive ineffective assistance of trial
    counsel. Concluding that the post-conviction court did not reversibly err, we affirm.
    Facts and Procedural History
    Wagener was convicted of murder, and we affirmed his conviction on direct
    appeal in 2006. Wagener v. State, 
    855 N.E.2d 1078
     (Ind. Ct. App. 2006) (table). The
    facts underlying his murder conviction follow:
    . . . On September 18, 2004, Dean Miller rode his bicycle to Kenneth
    Wagener’s home. Miller’s wife, who is also Wagener’s step-daughter,
    arrived at Wagener’s residence, and the three ate pizza, drank beer, and
    talked. Wagener and Miller began to argue and Wagener got up from his
    chair and stood over Miller, who was sitting on the couch. When Miller
    stood up, Wagener attempted to push him back down, and the two began to
    wrestle. Wagener and Miller fell on the floor, rolled around, and ended up
    in the kitchen. Miller pinned Wagener to the floor until Miller’s wife
    separated them and Miller went to the living room to calm down while his
    wife spoke to Wagener. Wagener’s glasses were broken in the tussle.
    Wagener went into his bedroom as Miller and his wife prepared to leave
    Wagener’s home. As Miller and his wife were headed out the front door,
    Wagener came out of his bedroom with a gun and told them that they were
    not leaving. When Miller’s wife insisted that they were leaving, Wagener
    fired a shot into the ceiling. The Millers continued out of the house and
    down the sidewalk to the street. Wagener came out of the house and stood
    on the porch. When Miller reached the corner of Wagener’s property,
    Wagener shot Miller in the back. Miller died from the gunshot wound.
    Miller’s wife attempted to reenter Wagener’s house to call 911, but
    Wagener locked the storm door, requiring Miller’s wife to break the door
    glass, reach in, and unlock the door to enter in order to get the telephone.
    While Miller’s wife called 911, Wagener, still holding the gun, came out of
    his house, walked to where Miller lay and said, “mother-fucker, I told you
    not to mess with me.” Wagener then turned around and walked back into
    his house.
    
    Id.
     at *2-*3 (citation omitted).
    2
    Following our decision affirming Wagener’s conviction, Wagener sought post-
    conviction relief. The post-conviction court held a hearing thereon, denied Wagener’s
    petition, and entered findings of fact and conclusions of law:
    FINDINGS OF FACT:
    ***
    2. . . . the jury was given possible verdict forms for Murder, Voluntary
    Manslaughter, and Reckless Homicide.
    ***
    5. At the time of the trial, the case of Eichelbarger v. State, 
    852 N.E.2d 631
    (Ind.App. 2006) had not yet been decided.
    6. At the time of the trial, the case of Sanders v. Cotton, 
    398 F.3d 572
     (7th
    Cir. 2005), had been decided but was unknown to [defense counsel], the
    Prosecutor, or the Court.
    7. Based on Eichelbarger and Sanders the trial court incorrectly instructed
    the [sic] about the State’s burden of proof in regard to “sudden heat” and
    voluntary manslaughter.
    8. The trial court correctly instructed the jury on the definition of “sudden
    heat” as a condition that may be created by a strong emotion such as anger,
    rage, sudden resentment, or jealousy.
    9. At trial, Wagener testified that he was not angry, he was not enraged, he
    was not resentful, and he was not jealous. In addition, Wagener had
    sufficient time to reflect while he attempted to call the police, while he was
    retrieving his gun, and while Miller was walking away.
    ***
    11. As a matter of trial strategy, [defense counsel] abandoned any effort to
    persuade the jury to the charge of Voluntary Manslaughter because it was
    an A felony, subject to punishment almost as serious as Murder, and
    because Wagener had told the jury that his conduct did not fall within the
    definition of “sudden heat.”
    ***
    CONCLUSIONS OF LAW:
    ***
    3. As a matter of trial strategy, [defense counsel] abandoned any effort to
    sway the jury to a verdict of Voluntary Manslaughter. Thus, the failure to
    instruct the jury properly on the State’s burden of proof would not have
    affected the outcome of the trial. Wagener was not prejudiced by his trial
    counsel’s actions.
    4. Once a defendant places sudden heat into issue, the State then bears the
    burden of negating the presence of sudden heat beyond a reasonable doubt.
    However, based upon Wagener’s testimony, sudden heat was not a serious
    inquiry or issue. Because it was not, Wagener could not be prejudiced by
    3
    an erroneous jury instruction for Voluntary Manslaughter because the jury
    could not have found the presence of sudden heat, and thus, could not have
    reduced his Murder conviction to Voluntary Manslaughter even under a
    correct instruction.
    ***
    Appendix to Brief of Petitioner-Appellant at 137-40 (footnotes omitted).
    Wagener now appeals.1
    Discussion and Decision
    I. Standard of Review
    When appealing the denial of post-conviction relief, the petitioner stands in
    the position of one appealing from a negative judgment. To prevail from
    the denial of postconviction relief, a petitioner must show that the evidence
    as a whole leads unerringly and unmistakably to a conclusion opposite that
    reached by the post-conviction court.
    Overstreet v. State, 
    877 N.E.2d 144
    , 151 (Ind. 2007) (citations omitted), cert. denied, 
    555 U.S. 972
     (2008). We “examine[] only the probative evidence and reasonable inferences
    that support the post-conviction court’s determination and do[] not reweigh the evidence
    or judge the credibility of the witnesses.” State v. Holmes, 
    728 N.E.2d 164
    , 169 (Ind.
    2000), cert. denied, 
    532 U.S. 1067
     (2001).                       We accept the post-conviction court’s
    findings of fact unless they are clearly erroneous, but we do not defer to the post-
    conviction court’s conclusions of law. 
    Id.
    1
    On direct appeal, Wagener challenged the sufficiency of the evidence to sustain his conviction, the trial
    court’s considerations in sentencing him, and the appropriateness of his sentence. He did not raise the issue of
    ineffective assistance of trial counsel. Contrary to the general rule which states that a convict waives post-
    conviction claims which were available but not raised on direct appeal, Wagener’s present claim that his trial
    counsel was ineffective has not been waived. See Woods v. State, 
    701 N.E.2d 1208
    , 1220 (Ind. 2008) (holding that
    a claim of ineffective assistance of trial counsel, if not raised on direct appeal, may be presented in post-conviction
    proceedings), cert. denied, 
    528 U.S. 861
     (1999).
    4
    II. Ineffective Assistance of Trial Counsel
    A. Two-Part Test
    Wagener argues the post-conviction court erred in denying his claim of ineffective
    assistance of counsel. To succeed in contending ineffective assistance of trial counsel, a
    petitioner must satisfy a two-part test. Kubsch v. State, 
    934 N.E.2d 1138
    , 1147 (Ind.
    2010) (citing Strickland v. Washington, 
    466 U.S. 668
     (1984)).
    First, a defendant must show that counsel’s performance was deficient.
    This requires a showing that counsel’s representation fell below an
    objective standard of reasonableness and that counsel made errors so
    serious that counsel was not functioning as counsel guaranteed to the
    defendant by the Sixth Amendment. Second, a defendant must show that
    the deficient performance prejudiced the defense. This requires showing
    that counsel’s errors were so serious as to deprive the defendant of a fair
    trial, meaning a trial where the result is reliable. To establish prejudice, a
    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 one that is sufficient to
    undermine confidence in the outcome. Further, counsel’s performance is
    presumed effective, and a defendant must offer strong and convincing
    evidence to overcome this presumption.
    
    Id.
     (quotations and citations omitted).
    B. Jury Instruction
    Wagener argues he received ineffective assistance from his trial counsel because
    his trial counsel tendered and the trial court gave an incorrect jury instruction regarding
    sudden heat, which Wagener argues led to his improper conviction of murder rather than
    voluntary manslaughter. “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.”
    Dearman v. State, 
    743 N.E.2d 757
    , 760 (Ind. 2001). Neither anger alone nor words alone
    5
    are sufficient provocation to warrant an instruction regarding sudden heat. Suprenant v.
    State, 
    925 N.E.2d 1280
    , 1282 (Ind. Ct. App. 2010), trans. denied.
    Indiana law states: “The existence of sudden heat is a mitigating factor that
    reduces what otherwise would be murder . . . to voluntary manslaughter.” 
    Ind. Code § 35-42-1-3
    (b). More to the point, sudden heat is not merely an element of the offense of
    voluntary manslaughter; rather, “once a defendant presents evidence of sudden heat, the
    State bears the burden of disproving its existence beyond a reasonable doubt.” Boesch v.
    State, 
    778 N.E.2d 1276
    , 1279 (Ind. 2002) (emphasis in original).
    Wagener contends that the pertinent jury instruction at his trial was an incorrect
    statement of the law and confused the jury as to who bore the burden of proving or
    disproving Wagener’s sudden heat. The State concedes that the jury instruction was
    incorrect, but argues this does not establish ineffective assistance of counsel because
    sudden heat was not a primary issue at trial, and thus the incorrect instruction does not
    warrant vacating his conviction. Wagener’s trial attorney and Wagener himself, the State
    argues, abandoned whatever mitigating effect sudden heat would have provided and
    focused on trying to persuade the jury that Wagener lacked the intent to kill, an element
    of both murder and voluntary manslaughter. Before determining whether the State’s
    argument is supported by the record, we review relevant case law to determine if the legal
    argument is correct. 2
    2
    Wagener relies upon Eichelberger v. State, 
    852 N.E.2d 631
     (2008), and Sanders v. Cotton, 
    398 F.3d 572
    (7th Cir. 2005). Those two cases focused on the sufficiency of the jury instructions regarding sudden heat as a
    whole when at least some instructions were incorrect. The determinative issue here, however, is whether correct
    jury instructions regarding sudden heat were required at all; or, stated differently, whether incorrect jury instructions
    prejudiced Wagener.
    6
    After all, our supreme court has stated: “We have repeatedly held that any
    appreciable evidence of sudden heat justifies an instruction on voluntary manslaughter.”
    Roark v. State, 
    573 N.E.2d 881
    , 881 (Ind. 1991) (emphasis added); see Washington v.
    State, 
    808 N.E.2d 617
     (Ind. 2004) (the most recent Indiana Supreme Court opinion
    referring to “any appreciable evidence” of sudden heat). Based on this reasoning, we
    might conclude that even if the mitigation of sudden heat was not Wagener’s primary
    defense, a correct jury instruction was required so long as “any appreciable evidence” of
    sudden heat was presented. More recently, however, our supreme court has held: “[I]f
    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.” Watts v. State, 
    885 N.E.2d 1228
    , 1231 (Ind. 2008) (emphasis added).
    The two firm rules articulated in Roark and Watts appear to conflict. Thus, we are
    tasked with reconciling the opinions, and do so in reliance on additional supreme court
    precedent, which ultimately outlines an approach far closer to the more recent Watts than
    Roark. In Boesch, which concerns the same issue as that before us, the court stated:
    When determining whether a defendant suffered a due process violation
    based on an incorrect jury instruction, we look not to the erroneous
    instruction in isolation, but in the context of all relevant information given
    to the jury, including closing argument and other instructions. There is no
    resulting due process violation where all such information considered as a
    whole does not mislead the jury as to a correct understanding of the law.
    778 N.E.2d at 1279 (emphasis added, citations omitted).
    Roark and Watts provide guidance – albeit somewhat mixed messages – to trial
    courts as to when particular instructions are necessary or prohibited. While these cases
    and others which opine on the propriety of trial court actions and omissions are often
    7
    helpful and determinative in post-conviction proceedings, Boesch is of a different ilk, and
    is more helpful here. The portion of Boesch quoted above might be useful in only post-
    conviction proceedings because it refers back in time to all information given to the jury,
    correct and incorrect, which includes factual evidence presented, legal and factual
    arguments made during closing arguments, and the trial court’s jury instructions and
    other miscellaneous statements.        All of this information – particularly the jury
    instructions provided – is not available at the time the trial court is considering how to
    instruct the jury. We believe it self-evident that trial courts do not consider the range of
    latitude to which they may err in instructing juries – trial courts intend to get it right, and
    almost always do.
    In any event, at this point in the post-conviction process of Wagener’s case,
    Boesch is most helpful. As a matter of law, the State’s argument is correct: it is not
    reversible error for the trial court to have mistakenly provided incorrect jury instructions
    where the factual evidence presented, the legal arguments articulated, and the jury
    instructions given – considered as a whole – did not lead the jury to apply incorrect law
    to material facts or those facts which were disputed. See Boesch, 778 N.E.2d at 1279.
    To be clear, this refers to statements of the law regarding issues of material or disputed
    facts; where erroneous statements of the law refer to immaterial or undisputed facts only,
    the error is harmless.
    This approach makes sense especially in this case and other similar cases, where
    the defense counsel made a strategic decision to employ an “all or nothing” strategy to
    seek acquittal or reckless homicide (a Class C felony), and to avoid a conviction of
    murder or voluntary manslaughter (a Class A felony if committed by means of a deadly
    8
    weapon).3 Where defense counsel makes a tactical decision to avoid a “compromise”
    position for the jury, “an unsupported voluntary manslaughter instruction deprives the
    defendant of the opportunity to pursue a legitimate trial strategy.” Watts, 885 N.E.2d at
    1233.
    Now we must determine whether the record reveals the jury instructions provided
    incorrect law to material or disputed facts. The post-conviction court concluded that
    Wagener’s attorney aimed for the lesser offense of reckless homicide because even a
    voluntary manslaughter conviction would have resulted in a significant sentence for
    Wagener. Wagener testified he aimed his gun at Dean Miller’s legs with the intent to
    detain Miller until police arrived. Trial Transcript at 313-15. He testified he was not
    “mad” at Miller or his wife, he did not “hate” Miller, and that he was not “angry,”
    “enraged,” “jealous,” or “resentful.”4                 Wagener disputed telling the wounded Miller
    anything to the effect of “mother-f . . . ker, I’ll teach you to mess with me[.]” Id. at 316.
    Wagener’s testimony thus eliminates the possibility of the jury reasonably determining
    Wagener was under the influence of sudden heat when he shot Miller, and likewise
    eliminates the possibility of the jury reasonably finding the State failed to disprove
    Wagener’s sudden heat. See Suprenant, 
    925 N.E.2d at 1282
     (stating that anger alone
    does not constitute sudden heat); Smedley v. State, 
    561 N.E.2d 776
    , 782 (Ind. 1990)
    3
    Our supreme court explained the “all or nothing” strategy in Watts, and we suspect that, in comparison to
    murder or voluntary manslaughter as a Class A felony, reckless homicide might seem like “nothing” to a defendant:
    One legitimate trial strategy for the defendant in a murder trial is an “all-or-nothing” one in which
    the defendant seeks acquittal while realizing that the jury might instead convict of murder. In a
    situation where a jury must choose between a murder conviction and an acquittal, the defendant
    might well be acquitted. But if the jury has voluntary manslaughter as an intermediate option, the
    defendant might be convicted of voluntary manslaughter as a “compromise.”
    Watts, 885 N.E.2d at 1233.
    4
    Wagener did state that he was upset, physically hurt, and under the influence of alcohol and medication.
    9
    (concluding that the defendant’s intoxication has no bearing on the presence or absence
    of sudden heat).
    As noted in Boesch, closing arguments are also helpful as we consider whether the
    presence of sudden heat was a material, disputed issue. The State began its closing
    argument by emphasizing Wagener’s remarks after shooting Miller, which, the State
    argued, demonstrated Wagener’s intent to kill. Id. at 345. The State contended: “The
    only issue I believe that you have in this case is the culpability. . . . I think [defense
    counsel]’s going to try to convince you to return the verdict form for Reckless Homicide .
    . . . I urge you to return a verdict of Murder, guilty, because when this man pulled that
    trigger, he intended to kill.” Id. The entirety of the State’s closing argument focused on
    Wagener’s intent to kill, except for a few short statements that intoxication is not a
    defense. Id. at 345-46.
    Wagener’s trial attorney’s closing argument also focused on Wagener’s intent. He
    told the jury he agreed that culpability was the main issue, and said, “when we talk about
    culpability, we talk about intentional conduct, we talk about knowing conduct and we
    talk about reckless conduct.” Id. at 347. He discussed what it means for a defendant to
    act knowingly or intentionally, and argued that Wagener’s conduct was not intentional.
    He attacked the credibility of witnesses whose description of events might have led jurors
    to conclude Wagener acted intentionally. As a whole, Wagener’s attorney’s closing
    argument demonstrated a strategic decision to concede that Wagener shot Miller, forego a
    claim of absolute innocence, and aim for a conviction of reckless homicide in an effort to
    avoid a conviction of murder or voluntary manslaughter. Id. at 347-55.
    10
    At the post-conviction hearing, Wagener’s trial attorney explained that upon
    Wagener testifying essentially that he was not acting under sudden heat, Wagener’s trial
    attorney adjusted his strategy to that which we described is evident from his closing
    argument – try to persuade the jury that Wagener lacked the intent to kill. By the time
    the jury received the partly erroneous instructions, Wagener’s testimony obliterated any
    reliance upon sudden heat and Wagener’s attorney steered the jury further from that
    conclusion in his closing arguments. The partly erroneous jury instructions then, referred
    to facts which were by that time not disputed and thus immaterial.
    In denying Wagener post-conviction relief, the post-conviction court explained
    that the trial court’s erroneous jury instruction regarding sudden heat proved irrelevant
    because Wagener’s testimony rendered it useless for defense counsel to encourage the
    jury to find Wagener guilty of voluntary manslaughter rather than murder.            This
    explanation is persuasive because it demonstrates that Wagener himself eliminated the
    mitigating factor for which he now grasps. See Kingery v. State, 
    659 N.E.2d 490
    , 494
    (Ind. 1995) (concluding that a defendant invited the error he challenges on appeal by
    eliciting the evidence which he now challenges).
    The post-conviction court’s explanation is also persuasive because it demonstrates
    that the narrowed focus of the closing argument – which conceded as undisputed what
    Wagener now claims was error – was a deliberate strategic decision by Wagener’s trial
    counsel. Indiana appellate courts “will not speculate as to what may have been counsel’s
    most advantageous strategy, and isolated poor strategy, bad tactics, or inexperience does
    not necessarily amount to ineffective assistance.” Sarwacinski v. State, 
    564 N.E.2d 950
    ,
    951 (Ind. Ct. App. 1991) (declining to conclude trial counsel was ineffective in relying
    11
    solely on self-defense, in murder prosecution, and not seeking a jury instruction on the
    lesser-included offense of voluntary manslaughter under the belief that it would weaken
    the self-defense case).
    In sum, we agree with the post-conviction court that Wagener did not receive
    ineffective assistance of trial counsel because the factual evidence presented, the legal
    arguments articulated, and the jury instructions given – considered as a whole – did not
    lead the jury to apply incorrect law to material facts or those facts which were disputed.
    Conclusion
    Wagener failed to show that his trial counsel’s performance fell below an
    objective standard of reasonableness. Therefore, we affirm the denial of his petition for
    post-conviction relief.
    Affirmed.
    BAKER, J., and BRADFORD, J., concur.
    12
    

Document Info

Docket Number: 34A05-1202-PC-47

Filed Date: 8/22/2012

Precedential Status: Non-Precedential

Modified Date: 4/18/2021