Hill v. State

561 N.E.2d 784, 1990 Ind. LEXIS 215, 1990 WL 168206

• Court: Indiana Supreme Court
• Decided: November 2, 1990
• Docket: 02S00-8908-PC-628
• Status: Published

Opinions

GIVAN, Justice.

This is an appeal from a denial of appellant's petition for post-conviction relief. In 1976, appellant was tried by a jury and found to be guilty of First Degree Murder, for which she received a life sentence. An appeal was taken from that conviction and the trial court was affirmed. Hill v. State (1977), 267 Ind. 411, 370 N.E.2d 889. Subsequently, appellant filed a pro se petition for post-conviction relief. Thereafter, the State Public Defender entered an appearance for appellant and twice amended appellant's petition. In April of 1989, the trial court denied appellant's petition.

Appellant claims the trial court erred in finding Instructions Nos. 12 and 18, given at the original trial, were not erroneous. Each of these instructions informed the jury that a person is presumed to intend the natural and probable consequences of his or her acts. Appellant cites Francis v. Franklin (1985), 471 U.S. 807, 105 S.Ct. 1965, 85 L.Ed.2d 344 and Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 in support of her position.

However, we do not reach the question as to whether these instructions violate those opinions. Neither opinion was decided until after the case at bar had been decided and appealed. These instructions were not challenged in that appeal. Post-conviction relief petitions do not serve the office of an appeal. Any error which was or could have been raised in a direct appeal is not available in post-conviction relief. Ind. Post-Conviction Rule 1, § 1(b).

Appellant contends the post-convietion court erred in finding that she was not denied the effective assistance of counsel. Appellant cites as ineffective assistance of counsel that trial counsel did not object to the questioned instructions. If we would assume for the sake of argument that the instructions did in fact violate Frameis and Sandstrom as pointed out above, those cases were decided long after counsel's representation of appellant.

At the time of appellant's original trial, instructions similar to Instructions 12 and 13 had been given repeatedly in this and other jurisdictions. There was nothing about the instructions which necessarily would call counsel's attention to the possibility that at some future time they might be declared to be an unconstitutional invasion of the province of the jury. In viewing all of the circumstances surrounding trial counsel's representation of appellant, we cannot say that his failure to object to Instructions Nos. 12 and 18 was outside the range of professionally competent assistance. Aubrey v. State (1985), Ind., 478 N.E.2d 70.

"Appellant also claims that counsel failed to object when the prosecuting attorney in closing arguments injected his personal opinion on how appellant should have testified as well as how she should have acted during her trial. The prosecutor further commented on what he believed to be appellant's lack of remorse for the crime charged. Appellant claims this conduct was improper in that it was an attempt on the part of the prosecutor to inform the jury of facts which were not in evidence.

In order to establish that counsel's failure to object to the prosecutor's comments was improper, it must be shown that had the objection been made it should have been sustained by the trial court. Oglesby v. State (1987), Ind., 515 N.E.2d 1082; Grigsby v. State (1987), Ind., 503 N.E.2d 394. We cannot agree with appellant's argument that the prosecutor's comments were improper. At no time did the prosecuting attorney state facts which were not in the record. He merely commented upon facts which were established, including appellant's testimony and her demeanor in the courtroom, all of which was clearly before the jury. Trial counsel in fact chose the avenue which was most likely to succeed under the circumstances, that is, in his own summation to the jury he attempted to answer each of the prosecuting attorney's comments made during his argument. This was a choice of strategy which this Court will not second-guess. Hoffman v. State (1988), Ind., 520 N.E.2d 436.

We find that appellant was adequately represented by counsel both at the original trial and at her original appeal.

The trial court is affirmed.

SHEPARD, C.J., and PIVARNIK, J., concur. DeBRULER, J., dissents with separate opinion in which DICKSON, J., concurs.