MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jul 15 2015, 6:28 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen T. Owens Gregory F. Zoeller Public Defender of Indiana Attorney General of Indiana
Victoria Christ Kelly A. Miklos Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
John W. Taylor, IV, July 15, 2015
Appellant-Petitioner, Court of Appeals Case No. 20A03-1411-PC-396 v. Appeal from the Elkhart Circuit Court State of Indiana, The Honorable Terry C. Shewmaker, Appellee-Respondent. Judge
Cause No. 20C01-1308-PC-52
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A03-1411-PC-396 | July 15, 2015 Page 1 of 13 [1] John W. Taylor, IV, appeals the denial of his petition for post-conviction relief.
Taylor raises one issue which we revise and restate as whether the post-
conviction court erred in denying his petition for relief. We affirm.
Facts and Procedural History
[2] The relevant facts as discussed in Taylor’s direct appeal from his three
convictions of attempted murder follow:
On October 26, 2011, Chamar Jackson (Jackson) and Avery Copeland (Copeland) walked to a fast food restaurant in Elkhart County, Indiana to visit their friend, Chynna Sipili (Sipili), who was employed there. When they arrived at the restaurant, Taylor was standing near the soda dispensers. Taylor and Sipili had just split up the previous day after Sipili had sent him a text message informing him that she needed space. When Jackson approached the counter to speak with Sipili, he was stared down by Taylor who told him to stop talking to his girlfriend. Jackson continued to talk to Sipili, and Taylor stormed angrily out of the restaurant. Thereafter, Jackson and Copeland returned to Copeland’s house. Michael Raeder (Raeder) noticed them standing outside the residence and pulled up in his vehicle. Jackson and Copeland got in Raeder’s car, intending to smoke marijuana together. Approximately ten to thirty minutes after Jackson and Copeland had left the fast food restaurant, Taylor returned and angrily confronted Sipili. He told her, “I swear to God after work I’ll kill you and them niggas.” (Transcript p. 340). Taylor again stormed out of the restaurant. Meanwhile, Jackson, Copeland, and Raeder were sitting in Raeder’s vehicle. Raeder was in the driver’s seat, Jackson in the front passenger seat, and Copeland was in the rear seat on the driver’s side. While they were talking, Taylor drove up in his car. He pulled up next to Raeder’s car and jumped out, carrying a large black rifle. He rapidly approached Raeder’s vehicle. He walked to the driver’s side of the car and stopped approximately ten feet away. Without saying anything, Taylor first started firing into the passenger compartment where
Court of Appeals of Indiana | Memorandum Decision 20A03-1411-PC-396 | July 15, 2015 Page 2 of 13 Copeland was sitting. He then fired into the driver’s seat. The vehicle became “riddled with bullets” and both of the driver’s side windows were shot out. (Tr. p. 490). Jackson jumped out of the car and rolled underneath, Copeland laid flat on the backseat, and Raeder curled up into a ball with his hands up, then opened the door of the car and tried to crawl to the trunk. As Taylor walked around the car firing the rifle, he lowered his aim from the window level down into the body of the car. Following the shooting, police officers and ambulances arrived at Copeland’s house. Jackson was not injured, Copeland was shot in the back, and Raeder received a shrapnel wound to the head and a bullet penetrated his right arm above the elbow. After the shooting, Taylor went to his sister’s apartment where he spoke with Sarah Lemon (Lemon). He told Lemon that he thought he had killed Jackson. Police officers also found a note, written by Taylor, which read, “I’m Killin’ niggas put em’ in the dirt . . . The choppa is under the cou[c]h . . . Domo.” (State’s Exh. 21). The police searched Taylor’s sister’s home and found a black rifle under her couch in the living room. Ten shell casings and bullet fragments recovered from the scene were later determined to have been fired from the rifle recovered by the police.
Taylor v. State, No. 20A03-1208-CR-365, slip op. at 2-4 (Ind. Ct. App. April 3,
2013).
[3] On October 31, 2011, the State charged Taylor with three counts of attempted
murder. Id. at 4. A jury found Taylor guilty as charged. Id. On August 9,
2012, the court sentenced Taylor to thirty-five years on Count I, forty years on
Count II, to be served consecutive to Count I, and forty years on Count III, to
be served concurrent with Count II. Id. Taylor appealed and argued that the
State failed to present sufficient evidence. Id. at 4-6. Specifically, Taylor
argued that because the injuries were not severe, Taylor did not have the
requisite intent to kill and merely committed a reckless act by firing a rifle at
Court of Appeals of Indiana | Memorandum Decision 20A03-1411-PC-396 | July 15, 2015 Page 3 of 13 close range to people. Id. at 5. In addressing Taylor’s argument that the
evidence was insufficient on direct appeal, this court stated:
We find that the fact that the victims’ injuries were not more severe merely proves that Taylor is a bad marksman; his actions and words clearly belie his intent to kill the three occupants of the vehicle. When he approached Raeder’s car, he walked up to the driver’s side and started firing indiscriminately. He methodically walked around the car, moving his aim from window level down to the body of the car. When he stopped firing, the vehicle was riddled with bullets and both of the driver’s side windows were shot out. The rifle was so powerful that a bullet penetrated the outside wall of Copeland’s residence, 172 feet away, and was located in an inner hallway of the house. Prior to the shooting, Taylor had told Sipili that he would kill her “and them niggas.” (Transcript p. 340). Later, after the shooting, Taylor told Lemon that he thought he had killed Jackson. And in a note, Taylor stated, “I’m Killin’ niggas[.]” (State's Exh. 21).
Id. at 5-6. This court affirmed. Id. at 6.
[4] On August 5, 2013, Taylor filed a petition for post-conviction relief. Taylor by
counsel later filed an amended petition and alleged that his trial counsel was
ineffective.
[5] On June 12, 2014, the court held a hearing. On October 21, 2014, the court
denied Taylor’s petition. The order states in part:
21. [Taylor] alleges that his trial counsel . . . was ineffective for failing to request an instruction on a lesser-included offense of aggravated battery for Counts I and II, and attempted aggravated battery for Count III. [Taylor] contends that aggravated battery is an inherently lesser-included offense to attempted murder. 22. In Noble v. State, 725 N.E.2d 842 (Ind. 2000), the Indiana Supreme Court, however, found that the crime of battery is not an inherently
Court of Appeals of Indiana | Memorandum Decision 20A03-1411-PC-396 | July 15, 2015 Page 4 of 13 included offense of attempted murder, but that under the specific facts presented in that case, battery was a factually included offense of attempted murder. Noble, 725 N.E.2d at 846-47. Compare to the holding in Meriweather v. State, 659 N.E.2d 133 (Ind. Ct. App. 1995),[ trans. denied,] in which the Court found that the offense of attempted aggravated battery is an inherently lesser included offense of attempted murder. Meriweather, [659] N.E.2d at 142. Then, in Young v. State, 11 N.E.3d 964 (Ind. Ct. App. 2014), the Indiana Court of Appeals found that under the circumstances of that particular case, a conviction of attempted aggravated battery as a lesser included offense to murder was not appropriate. Young, 11 N.E.2d 3d [sic] at 967-68.[1] Clearly, this issue is not well settled by existing case law. 23. [Trial counsel] testified during the post conviction hearing that he did not believe aggravated battery was an inherently lesser-included offense to attempted murder. [Taylor’s] opinion that [his trial counsel’s] belief in this regard is incorrect is not fully supported by case law. Rather, as discussed hereinabove, the case law is confusing: aggravated battery may be inherently included or factually included, but in any event, in [sic] depends on the factual circumstances of each case. Further, in either event, aggravated battery is a crime requiring a knowing or intentional culpability, not recklessness. [Trial counsel] testified that his arguments at trial were that [Taylor] did not act with the specific intent to kill; but argued for reckless rather than intentional conduct. [Trial counsel] said that he believed the State’s evidence was pretty good and that his strategy was to diffuse the evidence of intent to kill, so he thought his “reckless” argument was the way to go. [Trial counsel] also said that he thought battery made no sense because the facts were so egregious, and that if he had to do it again, he would approach the defense the same way. 24. The court concludes that [trial counsel] sufficiently articulated a strategy by indicating that he made a professional decision about what approach to use in defending [Taylor], and based on a review of the relevant case law, it cannot be said that [trial counsel’s] performance was deficient for not seeking a lesser included offense instruction.
1 The Indiana Supreme Court later vacated the opinion of Young v. State, 11 N.E.3d 964 (Ind. Ct. App. 2014).
Court of Appeals of Indiana | Memorandum Decision 20A03-1411-PC-396 | July 15, 2015 Page 5 of 13 25. The next issue for the court is whether there is a reasonable probability that the jury would have reached a different decision and not convicted [Taylor] for attempted murder, but would have convicted him of the lesser offense of aggravated battery if such an instruction would have been given. [Taylor] argues that, by not asking for a lesser included offense of aggravated battery, [trial counsel] did not provide the jury with a realistic verdict option. [Trial counsel] is a veteran attorney having practiced criminal defense in Indiana since 1979. He has been the Chief Public Defender in Elkhart County since 1985. In that time he has defended approximately twenty (20) individuals charged with Murder, and won acquittals in at least two (2) of . . . those cases. 26. [Taylor] contends that there is a reasonable probability that the jury would have convicted on aggravated battery, if given that option, because the evidence at trial was that [Taylor] was angry before the crime but did not continue to shoot the victims when he had the opportunity to do so. In considering [Taylor’s] sufficiency of the evidence argument on direct appeal, the Indiana Court of Appeals affirmed [Taylor’s] convictions and characterized the State’s evidence as follows: “[Taylor] walked up to the driver’s side and started firing indiscriminately. He methodically walked around the car, moving his aim from window level down to the body of the car. When he stopped firing, the vehicle was riddled with bullets and both of the driver’s side windows were shot out. The rifle was so powerful that a bullet penetrated the outside wall of Copeland’s residence, 172 feet away, and was located in an inner hallway of the house. Prior to the shooting, Taylor had told Sipili that he would kill her ‘and them niggas.’ Later, after the shooting, Taylor told Lemon that he thought he had killed Jackson. And in a note, Taylor stated, ‘I’m Killin niggas[.]” Taylor v. State, 985 N.E.2d 373 (Ind. Ct. App. 2013), unpublished and cited for the limited purpose of establishing the law of the case. 27. Considering the overwhelming and powerful evidence in this case, the court does not find that there is a reasonable probability that the outcome would have been different had the jury been presented with an instructions [sic] on aggravated battery. [Taylor] shot at the victims at point blank range with a semi-automatic rifle. The jury found beyond a reasonable doubt that [Taylor] acted with a specific intent to kill. The evidence was found to be sufficient to sustain the
Court of Appeals of Indiana | Memorandum Decision 20A03-1411-PC-396 | July 15, 2015 Page 6 of 13 convictions. [Taylor] has failed to prove prejudice or that he received ineffective assistance of trial counsel.
Appellant’s Appendix at 76-79.
Discussion
[6] Before discussing Taylor’s allegations of error, we note the general standard
under which we review a post-conviction court’s denial of a petition for post-
conviction relief. 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); Ind. Post-Conviction Rule 1(5).
When appealing from the denial of post-conviction relief, the petitioner stands
in the position of one appealing from a negative judgment. Fisher, 810 N.E.2d
at 679. On review, we will not reverse the judgment unless the evidence as a
whole unerringly and unmistakably leads to a conclusion opposite that reached
by the post-conviction court. Id. Further, the post-conviction court in this case
entered findings of fact and conclusions thereon in accordance with Indiana
Post-Conviction Rule 1(6). “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.” Id. In this review,
we accept findings of fact unless clearly erroneous, but we accord no deference
to conclusions of law. Id. The post-conviction court is the sole judge of the
weight of the evidence and the credibility of witnesses. Id.
Court of Appeals of Indiana | Memorandum Decision 20A03-1411-PC-396 | July 15, 2015 Page 7 of 13 [7] Taylor argues that his trial counsel should have tendered instructions on
aggravated battery and attempted aggravated battery as class B felonies as lesser
included offenses of attempted murder. He asserts that the post-conviction
court erred by concluding that trial counsel’s strategy was informed because
counsel did not consider and reject the notion of tendering lesser included
options. Taylor posits that the case law was not unclear when he was tried, and
that there was a serious evidentiary dispute regarding his intent to kill so the
court would have granted a request for the lesser included offense instructions
under Wright v. State, 658 N.E.2d 563 (Ind. 1995).
[8] The State argues that case law is not clear regarding whether aggravated battery
or attempted aggravated battery is a lesser included offense of attempted
murder, and that a trial court may have properly denied such instructions based
on Indiana Supreme Court precedent. It also contends that trial counsel’s
strategy was reasonable and if successful would have resulted in a full acquittal.
Based upon the evidence, the State contends there was no reasonable possibility
that the jury would have convicted Taylor of a lesser included offense and
acquitted him of attempted murder.
[9] Generally, to prevail on a claim of ineffective assistance of counsel, a petitioner
must demonstrate both that his counsel’s performance was deficient and that
the petitioner was prejudiced by the deficient performance. French v. State, 778
N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is deficient if it falls
below an objective standard of reasonableness based on prevailing professional
Court of Appeals of Indiana | Memorandum Decision 20A03-1411-PC-396 | July 15, 2015 Page 8 of 13 norms. Id. To meet the appropriate test for prejudice, the petitioner must show
that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. Id. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.
Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong
will cause the claim to fail. French, 778 N.E.2d at 824. Most ineffective
assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.
[10] When considering a claim of ineffective assistance of counsel, a “strong
presumption arises that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.”
Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance
is presumed effective, and a defendant must offer strong and convincing
evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73
(Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will
not support a claim of ineffective assistance of counsel. Clark v. State, 668
N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.
Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second
guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). We “will not lightly
speculate as to what may or may not have been an advantageous trial strategy
as counsel should be given deference in choosing a trial strategy which, at the
time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d
40, 42 (Ind. 1998).
Court of Appeals of Indiana | Memorandum Decision 20A03-1411-PC-396 | July 15, 2015 Page 9 of 13 [11] At the post-conviction hearing, while Taylor’s trial counsel testified that he did
not consider tendering instructions on aggravated battery or attempted
aggravated battery, he testified that his strategy was to demonstrate that Taylor
“basically committed an act that was reckless and not an act of attempted
murder” and that he was trying to negate specific intent. Post-Conviction
Transcript at 7. He stated:
I – I felt that when one goes to trial you have to make a . . . realistic argument. You have to present something because that’s the client’s – it’s his right to have that done. And the only thing I could attach my brain to was this was an act of anger, but there was no desire to murder these people.
Id. at 19. Trial counsel indicated that he used the word “reckless” throughout
the trial beginning with voir dire and that he attempted to argue that Taylor was
acting only recklessly. Id. at 23. He stated that the statute governing
aggravated battery required a knowing or intentional infliction of injury and
that a mere reckless infliction of injury would not be sufficient to convict for
aggravated battery. Trial counsel also indicated that if he argued Taylor acted
recklessly and then requested a battery instruction, “[i]t would cancel any
recklessness that might have been able to be portrayed,” that he “was not
confident in the defense,” and that the “jury would have been very unimpressed
with that switch.” Id. at 26. Trial counsel indicated that it was logical to
conclude that the jury must have thought that Taylor intended to kill but was a
bad shot. When asked if it was possible that he did not consider battery because
battery has the requirement of acting knowingly or intentionally, trial counsel
Court of Appeals of Indiana | Memorandum Decision 20A03-1411-PC-396 | July 15, 2015 Page 10 of 13 answered: “I thought the facts were so egregious that the concept of battery was
ridiculous and that’s more on hindsight than it is at the time, but I can say that
today that it just made no sense.” Id. at 32. Trial counsel also testified:
And quite frankly, if I had to try this case again, I’d probably do it the same way. Because there was no way, in my opinion, that you can be 10 feet from someone with an SKS and but for the good steel made by the Ford Corporation and Lincoln Town Car it could have gone a different way. There was a round in the headrest. There was testimony that the back wound sustained by one of the individuals was because he was down in a, I believe, cowering position was the term that was used. I’m saying if you don’t kill somebody at that range with an SKS with that number of rounds fired you’re either lucky or a bad shot or something intervened. I don’t know how to put it any other way.
Id. at 29. During cross-examination, trial counsel was asked if he would try the
case differently and answered:
That’s a good question. I suppose this has to be – well, it is speculation. I guess the real answer would be I don’t know. But you’ve tried cases against me, and I don’t think you’ve ever seen philosophy, pie in the sky, nonsense come out of me. Maybe today, but what I’m saying to you is I try cases realistically, and that’s what I tried to do with this case here.
Id. at 36. We cannot say that the overall strategy of defense counsel renders his
performance deficient.
[12] However, even assuming that the performance of Taylor’s trial counsel was
deficient, Taylor has failed to show that he was prejudiced. The Indiana
Supreme Court has held:
Court of Appeals of Indiana | Memorandum Decision 20A03-1411-PC-396 | July 15, 2015 Page 11 of 13 When a defendant requests an instruction covering a lesser-included offense, a trial court applies the three-part analysis set forth in Wright v. State, 658 N.E.2d 563, 566-67 (Ind. 1995). The first two parts require the trial court to determine whether the offense is either inherently or factually included in the charged offense. Id. If so, the trial court must determine whether there is a serious evidentiary dispute regarding any element that distinguishes the two offenses. Id. at 567; see also Brown v. State, 703 N.E.2d 1010, 1019 (Ind. 1998). Wright held that “if, in view of this dispute, a jury could conclude that the lesser offense was committed but not the greater, then it is reversible error for a trial court not to give an instruction, when requested, on the inherently or factually included lesser offense.” Wright, 658 N.E.2d at 567.
Wilson v. State, 765 N.E.2d 1265, 1271 (Ind. 2002). See also Taylor v. State, 840
N.E.2d 324, 337 n.4 (Ind. 2006) (addressing a petitioner’s claim of ineffective
assistance because trial counsel failed to tender a lesser included instruction and
noting that petitioner might conceivably have been entitled to an instruction if
he was able to satisfy the requirements of Wright v. State, 658 N.E.2d 563 (Ind.
1995)).
[13] The record reveals that Sipili testified that Taylor said: “I swear to God after –
after work or something I’ll kill you and them niggas or something like that.”
Trial Transcript at 340. Taylor later pulled up to a vehicle containing Raeder,
Jackson, and Copeland, exited his car, and started shooting a SKS or large rifle
seconds later. During direct examination, Jackson testified that Taylor was
“[n]ot even like 10 feet” away when he started shooting. Id. at 302. The
vehicle became “riddled with bullets.” Id. at 490. Based upon the record, we
conclude that there was no serious evidentiary dispute regarding whether
Taylor intended to kill the victims. The evidence was overwhelming and
Court of Appeals of Indiana | Memorandum Decision 20A03-1411-PC-396 | July 15, 2015 Page 12 of 13 evinced an intent to kill. We cannot say that Taylor demonstrated prejudice
from the alleged error.
Conclusion
[14] For the foregoing reasons, we affirm the post-conviction court’s denial of
Taylor’s petition.
Crone, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A03-1411-PC-396 | July 15, 2015 Page 13 of 13