Edward Ivy v. State of Indiana , 98 N.E.3d 107 ( 2018 )

FILED
Apr 04 2018, 10:38 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General of Indiana
Jonathan O. Chenoweth Monika Prekopa Talbot
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Edward Ivy, April 4, 2018
Appellant-Petitioner, Court of Appeals Case No.
82A04-1711-PC-2506
v. Appeal from the Vanderburgh
Superior Court
State of Indiana, The Honorable Robert J. Pigman,
Appellee-Respondent Judge
Trial Court Cause No.
82D03-1503-PC-1540
Baker, Judge.
Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018 Page 1 of 15
[1] Edward Ivy appeals the denial of his petition for post-conviction relief, arguing
that the post-conviction court should have found that he received the ineffective
assistance of both trial and appellate counsel. Finding that Ivy received the
ineffective assistance of trial counsel, we vacate his attempted murder
conviction, reverse, and remand for further proceedings.
Facts
[2] The underlying facts, as described by this Court in Ivy’s direct appeal, are as
follows:
On October 28, 2013, Jerald Clark was at home watching
football with his friend, Robert Drake, when someone knocked
on his front door. When Clark asked who it was, Ivy identified
himself. Clark opened the door and let in Ivy and Antwain
Russell, both of whom Clark had known for approximately one
year. Clark sat down with his back toward Ivy and Russell, and
began texting on his phone. Russell then approached Clark from
behind and stabbed him with a knife. Russell told Clark, “you
are going to leave my brother alone: Bitch I killed you this time
you MF, you’re a dead MF.” Tr. at 18. Russell stabbed Clark
multiple times. When Drake tried to stand up to help, Ivy
pointed a gun at the back of his head and said, “[D]on't
move.” Id. at 199. Clark managed to push Russell aside and
escape the residence. Ivy and Russell fled through the back door
of the residence and chased after Clark. Clark made it to a
neighbor’s residence. The neighbor observed that blood was
“pouring” and “squirting” out of Clark’s neck, and “gushing” out
of his arm and his back. Id. at 69–70. The neighbor called 911.
When Clark arrived at the hospital, he was gray, unresponsive,
and had no pulse. Emergency room personnel revived Clark
with chest compressions. While at the hospital, Clark lost vital
signs on at least one other occasion and had to be revived again.
Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018 Page 2 of 15
Clark underwent surgery and remained in the hospital for
approximately two and one-half weeks.
The State charged Ivy with class A felony attempted murder and
class C felony intimidation. The State also charged Ivy with
being a habitual offender. A jury trial was held on February 18
and 19, 2014.
Ivy v. State, No. 82A01-1404-CR-175, at *1 (Ind. Ct. App. Oct. 10, 2014). At
trial, Ivy conceded that Russell had tried to kill Clark and that Ivy may have
aided Russell by holding the gun on Drake, but argued that Ivy had not acted
with the requisite culpability to be found guilty of attempted murder as an
accomplice.
[3] When instructing the jury prior to deliberation, the trial court gave two
instructions that are relevant to this appeal. Final Instruction Three stated as
follows:
The Crime charged in Count I, Attempted Murder, is defined by
statute as follows:
A person attempts to commit a murder when, acting with the
specific intent to kill another person, he engages in conduct that
constitutes a substantial step toward killing that person.
Before you may convict the Defendant the State must have
proved each of the following elements beyond a reasonable
doubt:
The Defendant:
Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018 Page 3 of 15
1. Acting with the specific intent to kill Jerald Clark, Jr.
2. Did attempt the crime of Murder by knowingly stab [sic]
Jerald Clark, Jr. with a knife.
3. Which was conduct constituted [sic] a substantial step
toward the commission of the intended crime of Murder.
If the State failed to prove each of these elements beyond a
reasonable doubt you should find the Defendant not guilty.
If the State did prove each of these elements beyond a reasonable
doubt, you should find the Defendant guilty of Attempted
Murder, a Class A felony.
Appellant’s Direct Appeal App. p. 39. Final Instruction Nine stated as follows:
A person who knowingly or intentionally aids another in
committing a crime is guilty of that crime. In order to commit a
crime of aiding, a person must have knowledge that he is aiding
the commission of the crime. To be guilty, he does not have to
personally participate in the crime nor does he have to be present
when the crime is committed. Mere presence alone is not
sufficient to prove the Defendant aided the crime. Failure to
oppose the commission of the crime alone is also insufficient to
prove that the Defendant aided the crime. However presence at
the scene of the crime and failure to oppose the crime’s
commission are factors which may be considered in determining
whether there was [sic] aiding another to commit the crime.
Before you can convict the Defendant as an accessory the State
must prove the elements of the crime and that the Defendant
knowingly or intentionally aided another to commit the crime.
Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018 Page 4 of 15
Id. at 47. Trial counsel did not object to the final jury instructions, nor did
counsel tender an instruction regarding accomplice liability for attempted
murder.
[4] The jury found Ivy guilty as charged. The State also alleged that Ivy was an
habitual offender; Ivy admitted to that allegation and the trial court proceeded
to sentencing. The trial court sentenced Ivy to thirty-five years for attempted
murder and enhanced that sentence by thirty years for the habitual offender
filing, and to a concurrent five-year term for intimidation, for an aggregate
sentence of sixty-five years. Ivy appealed, raising the sole argument that the
evidence was insufficient to support the attempted murder conviction. This
Court affirmed. Ivy, No. 82A01-1404-CR-175, at *2.
[5] On February 23, 2015, Ivy filed a pro se petition for post-conviction relief,
which was later amended by counsel on April 18, 2017. Ivy claimed that both
trial and appellate counsel were ineffective for, among other things, failing to
object to the jury instructions and raise the issue of jury instructions on appeal,
respectively. Following a hearing, the post-conviction court denied Ivy’s
petition on October 5, 2017. Ivy now appeals.
Discussion and Decision
I. Standard of Review
[6] The general rules regarding the review of a ruling on a petition for post-
conviction relief are well established:
Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018 Page 5 of 15
“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).
“When appealing from the denial of post-conviction relief, the
petitioner stands in the position of one appealing from a negative
judgment.” Id. To prevail on appeal from the denial of post-
conviction 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. Weatherford v.
State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
conviction court in this case made findings of fact and
conclusions of law in accordance with Indiana Post–Conviction
Rule 1(6). Although we do not defer to the post-conviction
court’s legal conclusions, “[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.” Ben-Yisrayl v. State, 729 N.E.2d
102, 106 (Ind. 2000) (quotation omitted).
Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).
[7] A claim of ineffective assistance of trial counsel requires a showing that:
(1) counsel’s performance was deficient by falling below an objective standard
of reasonableness based on prevailing professional norms; and (2) counsel’s
performance prejudiced the defendant such that “‘there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444
(Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “A
reasonable probability arises when there is a ‘probability sufficient to undermine
confidence in the outcome.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.
2006) (quoting Strickland, 466 U.S. at 694). “Failure to satisfy either of the two
Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018 Page 6 of 15
prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind.
Ct. App. 2012). To establish ineffective assistance for failure to object, the
petitioner must establish that the objection would have been sustained and that
the petitioner was prejudiced by the failure to object. Law v. State, 797 N.E.2d
1157, 1164 (Ind. Ct. App. 2003).
II. Assistance of Trial Counsel
[8] Ivy contends that trial counsel was ineffective for failing to object to the jury
instructions, which he argues were incomplete and insufficient, and for failing
to tender a proper instruction regarding accomplice liability for attempted
murder.
A. Applicable Law
[9] Here, Ivy was charged with attempted murder as an accomplice. Our Supreme
Court has explained how this charge must be proved as follows:
in order to establish that a defendant aided, induced, or caused
an accomplice to commit attempted murder, the State must
prove that the defendant, with the specific intent that the killing occur,
knowingly or intentionally aided, induced, or caused his
accomplice to commit the crime of attempted murder. Thus, to
convict for the offense of aiding an attempted murder, the State
must prove: (1) that the accomplice, acting with the specific
intent to kill, took a substantial step toward the commission of
murder, and (2) that the defendant, acting with the specific intent
that the killing occur, knowingly or intentionally aided, induced, or
caused the accomplice to commit the crime of attempted murder.
Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018 Page 7 of 15
Bethel v. State, 730 N.E.2d 1242, 1246 (Ind. 2000) (emphases added) (citing
Spradlin v. State, 569 N.E.2d 948, 950 (Ind. 1991)); see also Williams v. State, 737
N.E.2d 734, 739 (Ind. 2000) (finding fundamental error where “the jury was
never instructed that it had to find that Williams, as a non-shooting accomplice,
acted with the specific intent to kill the victim) (emphasis original).
[10] Our Supreme Court “has recognized the special need to instruct juries precisely
as to the correct level of culpability for attempted murder because of the
stringent penalties for that charge and the inherent ambiguity often involved in
its proof.” Specht v. State, 838 N.E.2d 1081, 1089 (Ind. Ct. App. 2005) (citing
Williams, 737 N.E.2d at 740). Moreover, “both the level of ambiguity and the
corresponding need for precise jury instructions significantly increase in a
prosecution for aiding an attempted murder.” Williams, 737 N.E.2d at 740
(emphasis added).
[11] We find this Court’s decision in Specht especially instructive. In that case,
Specht and Eric Schmitt decided to rob a convenience store. In the days
leading up to the robbery, Specht “talked about stabbing a clerk with a broken
glass bottle or hitting him with a hockey puck in a sock.” 838 N.E.2d at 1084.
When they went to the store to commit the robbery, Specht was armed with a
handgun and Schmitt was armed with a shotgun. Specht walked into the store
alone with the handgun in his pocket but walked back outside without taking
any action. Schmitt took the handgun and gave Specht the shotgun, “started
talking about killing people, began jumping around, and then went into the
store alone.” Id. at 1085. After Schmitt went inside, Specht heard a gunshot
Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018 Page 8 of 15
and went back into the store. He saw Schmitt shoot a store employee and a
customer—the employee died and the customer survived. Schmitt took money
from the cash register, Specht grabbed two packs of cigarettes, and they exited
the store together. Specht was ultimately convicted of murder, robbery, and
attempted murder. His direct appeal was unsuccessful, Specht v. State, 734
N.E.2d 239 (Ind. 2000), and he later filed a petition for post-conviction relief.
The post-conviction court denied his petition and he appealed.
[12] On appeal, Specht raised multiple issues, including ineffective assistance of trial
counsel for failure to object to the jury instructions as they related to accomplice
liability for attempted murder. Specifically, Specht argued that the instructions
were fundamentally erroneous because they did not inform the jury that it had
to find that Specht intended that the customer be killed to find him guilty of
attempted murder on an accomplice liability theory. This Court analyzed the
jury instructions as follows:
• Instruction Number Five related to attempted murder and informed the
jury that it had to find that Specht acted with the specific intent to
commit murder. But “[w]hile the instruction does mention specific
intent, it was phrased in terms of Specht being the principal, i.e., the
shooter, rather than the accomplice.” Specht, 838 N.E.2d at 1090.
• Instruction Number Ten, which related to accomplice liability, “does not
require the jury to find that Specht specifically intended that [the
customer] be killed when he knowingly or intentionally aided Schmitt in
the commission of attempted murder.” Id. at 1090-91 (emphasis
original).
Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018 Page 9 of 15
This Court concluded that the trial court’s “failure to instruct the jury on this
essential element of accomplice liability for attempted murder” was erroneous.
Id. at 1090 (citing Woodson v. State, 767 N.E.2d 1022, 1028-29 (Ind. Ct. App.
2002) (holding that accomplice liability instruction lacking “specific intent to
kill” language, even when combined with separate attempted murder
instruction which includes “specific intent to murder” language, does not
adequately inform jury of need to find the accomplice had the specific intent to
kill when he took the steps to help the principal)).
[13] The State contended that even if the instructions were erroneous, any error was
harmless. And this type of error is, indeed, harmless “where the defendant’s
intent was not at issue during trial.” Specht, 838 N.E.2d at 1091. But this Court
found that Specht’s intent was at issue, inasmuch as both of his defenses—that
he abandoned his intent to rob the store and that he only remained in the store
because he thought Schmitt would kill him if he tried to leave—“go directly to
Specht’s intent that [the customer] be killed.” Id. Therefore, the error was not
harmless. This Court found that trial counsel was ineffective for failing to
object to the instructions and tender a proper instruction regarding accomplice
liability, reversed the denial of his petition for post-conviction relief, and
vacated the attempted murder conviction. Id. at 1091-92.
B. Ivy’s Case
[14] We find Ivy’s case strikingly similar to Specht. Here, as in Specht, Instruction
Three related to attempted murder and informed the jury that it had to find that
Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018 Page 10 of 15
Ivy acted with the specific intent to commit murder. But while the instruction
does mention specific intent, it was phrased in terms of Ivy being the principal
actor, i.e., the one who stabbed the victim, rather than the accomplice. And
Instruction Nine, which related to accomplice liability, did not require the jury
to find that Ivy specifically intended that the victim be killed when he knowingly
or intentionally aided Russell in the commission of attempted murder. 1 The
State argues that the combined effect of Instructions Three and Nine satisfies
the requirements of Bethel, but Specht and Woodson clearly compel us to reach
the opposite conclusion. Here, as in Specht and Woodson, the trial court’s failure
to instruct the jury on the essential element of accomplice liability for attempted
murder constitutes error.
[15] The State argues that even if the instructions were erroneous, any error was
harmless. As in Specht, the State contends that Ivy’s intent “was never seriously
in dispute,” so Ivy was not prejudiced as a result of the error. Appellee’s Br. p.
13.
[16] We disagree. In fact, the post-conviction court, which also presided over the
trial, found as a matter of fact that Ivy’s intent was “a central issue at trial[.]”
Appellant’s PCR App. Vol. II p. 93. The record reveals that, while Ivy held a
gun on Drake while Russell stabbed Clark, there was no direct evidence of a
pre-existing plan between Ivy and Russell, no direct evidence that Ivy had
1
Ivy concedes that both instructions are correct statements of the law. He merely argues that they are
incomplete, as they omit an instruction in line with Bethel.
Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018 Page 11 of 15
intended to commit a crime in Clark’s home, no direct evidence that Ivy knew
or suspected that Russell would stab Clark, and no direct evidence that Ivy
specifically intended for Russell to kill Clark. Ivy’s entire defense at trial was
premised on his intent, and his trial counsel devoted almost the entirety of her
closing argument to that issue. It is apparent that, contrary to the State’s
argument, Ivy’s intent was squarely at issue. Under these circumstances, as in
Specht, we simply cannot conclude that the instructional error was harmless.
[17] By failing to object to the attempted murder and accomplice liability
instructions as given and by failing to tender a proper instruction, Ivy’s trial
counsel’s performance at trial fell below an objective standard of
reasonableness. Moreover, we find that there is a reasonable probability that
had trial counsel objected to the instructions as given and tendered the
appropriate instruction, the result of Ivy’s trial on the attempted murder charge
may have been different. We therefore reverse the denial of the petition for
post-conviction relief, vacate Ivy’s conviction for attempted murder, and
remand for further proceedings.2
2
Because we find in favor of Ivy on the issue of assistance of trial counsel, we will not also address his
argument related to appellate counsel. But we echo the Specht Court “that there is a reasonable probability
that our Supreme Court would have reversed [Ivy’s] attempted murder conviction if his counsel had raised
the accomplice liability jury instruction issue as fundamental error on appeal, particularly given that the
Court announced its decision in Bethel, which clarified the elements required for an attempted murder
conviction in the accomplice liability context,” and this Court announced its decisions in Specht and Woodson,
over a decade before Ivy’s direct appeal. Specht, 838 N.E.2d at 1096 n.8.
Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018 Page 12 of 15
[18] The judgment of the post-conviction court is reversed and remanded for further
proceedings, and Ivy’s conviction for attempted murder is vacated.
Brown, J., concurs.
Riley, J., dissents with a separate opinion.
Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018 Page 13 of 15
IN THE
COURT OF APPEALS OF INDIANA
Edward Ivy, Court of Appeals Case No.
82A04-1711-PC-2506
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff
Riley, Judge, dissenting.
[19] I agree with the post-conviction court that Edward Ivy (Ivy) is not entitled to
post-conviction relief because his trial counsel was not ineffective in failing to
object to the jury instructions as given. When read together, I find that the jury
instructions sufficiently apprised the jury of the essential elements necessary to
convict Ivy of attempted murder under an accomplice liability theory.
Therefore, I dissent from the majority opinion.
[20] A trial court “commits fundamental error when i[t] fails to instruct the jury that
in order to find an accomplice guilty of attempted murder, it must find that the
Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018 Page 14 of 15
accomplice possessed the specific intent to kill when he knowingly or
intentionally aided, induced or caused the principal to commit the crime of
attempted murder.” Specht v. State, 838 N.E.2d 1081, 1089 (Ind. Ct. App.
2005), trans. denied. In the case at hand, Jury Instruction Number 9 specified
that “[b]efore you can convict [Ivy] as an accessory[,] the State must prove the
elements of the crime and that [Ivy] knowingly or intentionally aided another to
commit the crime.” (Appellant’s Direct Appeal App. p. 47). Thus, to find the
elements of the crime satisfied, the jury necessarily had to determine that Ivy
“[a]ct[ed] with the specific intent to kill” and that he “knowingly or
intentionally aided another.” (Appellant’s Direct Appeal App. pp. 39, 47).
Accordingly, I would affirm the post-conviction court because “any failing in
the first part of the [accomplice liability] jury instruction [which fails to include
the specific intent element] is cured when the instruction is read as a whole.”
(Appellant’s PCR App. Vol. II, p. 88).3
3
Therefore, although not addressed by the majority opinion, I would also find that Ivy’s appellate counsel
did not render ineffective assistance by declining to raise as an issue that the trial court’s jury instructions
amounted to fundamental error.
Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018 Page 15 of 15