Sarwacinski v. State , 564 N.E.2d 950 ( 1991 )

HOFFMAN, Presiding Judge.

Defendant-appellant David Sarwacinski appeals his conviction for murder. IND. CODE § 35-42-1-1 (1988 Ed.).

The facts favorable to the judgment show that on January 21, 1989, the victim, Robert Eisenhutt, was visiting his girl friend, appellant's step-daughter, at appellant's home in Hammond, Indiana. Sometime after 11:00 P.M., appellant arrived home from work and began to drink and talk with Eisenhutt. A few hours later, Eisenhutt, who was holding his girlfriend's five-month-old baby, started erying due to the crib death of his own daughter a few months earlier. Appellant attempted to console Eisenhutt, but when his attempt failed, he asked Eisenhutt to leave. Eisen-hutt stated that he wanted to talk to his girlfriend, and appellant reached for his gun. Two women in the household attempted to escort Eisenhutt out of the house, but he stumbled his way back inside. After ordering one of the women to call the police, appellant shot Eisenhutt in the shoulder and chest. When Eisenhutt subsequently exited the house, appellant followed him outside and shot him in the arm. Eisenhutt died from the loss of blood due to his multiple gunshot wounds.

Appellant raises four issues for review which this Court restates as three:

(1) whether the trial court erred in failing to sua sponte instruct the jury on the lesser-included offense of voluntary manslaughter;

(2) whether trial counsel was ineffective in failing to tender an instruction on voluntary manslaughter to the trial court; and

(3) whether the evidence was insufficient to overcome appellant's claim of self-defense and to sustain his conviction for murder.

Appellant claims the trial court erred in failing to instruct the jury on the lesser-included offense of voluntary manslaughter. Although appellant did not tender such an instruction to the trial court, he argues that the court's failure to instruct the jury on its own motion constitutes fundamental error. However, our Supreme Court has addressed this issue and found that failure to give instructions on lesser-included offenses does not constitute fundamental error. Metcalf v. State (1983), Ind., 451 N.E.2d 321, 326.

Next, appellant maintains trial counsel was ineffective in failing to tender an instruction on voluntary manslaughter to the trial court. It is well settled that judicial scrutiny of counsel's performance is highly deferential. The standard for counsel's performance is reasonably effective assistance. To prevail on a claim of ineffectiveness, a defendant must show (1) that counsel's performance fell below an objective standard of reasonableness and (2) the reasonable probability that, but for counsel's unprofessional errors, the result would have been different.

Strickland v. Washington (1984), 466 U.S. 668, 687-694, 104 S.Ct. 2052, 2064-2068, 80 L.Ed.2d 674; Mftari v. State (1989), Ind., 537 N.E.2d 469, 473.

This Court 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.

Strickland 466 U.S. at 689-691, 104 S.Ct. at 2065-2066.

Mftari at 473.

It is apparent from the record that appellant's trial counsel decided to rely solely on the defense of self-defense. If counsel had submitted an instruction on voluntary manslaughter, he would have weakened the self-defense case and diminished appellant's chances of aequittal. This Court finds no reason to second-guess the strategic decision of counsel.¹

Finally, appellant claims the evidence was insufficient to overcome his claim of self-defense and to sustain his murder conviction.² When reviewing a claim of insufficient evidence, this Court neither reweighs the evidence nor rejudges the credibility of witnesses. Rather, it looks only to the evidence favorable to the judgment and any reasonable inferences therefrom. If there was sufficient evidence of probative value to support a finding of guilt beyond a reasonable doubt, this Court will affirm the conviction. Madison v. State (1989), Ind., 534 N.E.2d 702, 703.

To prevail on a claim of self-defense, a defendant must show: (1) that he was in a place where he had a right to be; (2) that he acted without fault; and (8) that he had a reasonable fear or apprehension of death or great bodily harm. Id. Once the defendant has asserted his self-defense claim, the State bears the burden of proving beyond a reasonable doubt the absence of one of the above-mentioned factors. Id. at 704. Whether the State has disproved a claim of self-defense is a question of fact for the jury, and when the evidence is conflicting, the jury may accept or reject the claim of self-defense. Id.

Here, the evidence was conflicting as to whether appellant acted without fault and whether he had a reasonable fear or apprehension of death or great bodily harm. Consequently, it was reasonable for the jury to reject appellant's claim of self-defense. Id. Because this Court will not reweigh the evidence or rejudge the credibility of witnesses, the judgment of the trial court is affirmed.

Affirmed.

CHEZEM, J., concurs. MILLER, P.J., dissents with opinion.

1 . In response to footnote 2 of the dissent, this Court would note that requiring attorneys to make a record of their strategy discussions with their clients would be highly impractical. Moreover, even if the record were made outside the presence of the jury, such a requirement might, in fact, compromise the attorney-client relationship by revealing privileged communications to the trial court as well as opposing counsel.

2 . Appellant also argues that there was insufficient evidence to show the malice necessary to sustain his murder conviction; however, the crime of murder no longer embodies the element of malice. McCann v. State (1984), Ind., 466 N.E.2d 421, 424.