Fredrick L. Edmond v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Jan 21 2020, 7:29 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Fredrick L. Edmond Curtis T. Hill, Jr.
Pendleton, Indiana Attorney General of Indiana
Angela N. Sanchez
Assistant Section Chief, Criminal
Appeals
Henry Flores
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Fredrick L. Edmond, January 21, 2020
Appellant-Petitioner, Court of Appeals Case No.
18A-PC-2738
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Salvador Vasquez,
Appellee-Respondent. Judge
The Honorable Kathleen A.
Sullivan, Magistrate
Trial Court Cause No.
45G01-1105-PC-4
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2738 | January 21, 2020 Page 1 of 17
[1] Fredrick Edmond (“Edmond”) was convicted of voluntary manslaughter and
attempted murder in 2006. Following his unsuccessful direct appeal, Edmond
filed a petition for post-conviction relief, which the Lake Superior Court denied.
Edmond appeals pro se and challenges whether the post-conviction court
clearly erred in determining that Edmond received effective assistance of trial
and appellate counsel.
[2] We affirm.
Facts and Procedural History
[3] The facts underlying Edmond’s convictions are as follows.
. . . Cher Steward and Edmond were in a relationship and lived
together after their twin children were born. They separated and
an arrangement was reached whereby [Edmond’s mother] had
custody of the children.
Cher spent the night [before Edmond’s crime] at the home of
Alexis Hamilton as did Shawnquella Williams. The next day
[June 19, 2005], the three women left the house. Cher was
driving Alexis’[s] mother’s car, with Alexis in the front passenger
seat, and Shawnquella sitting behind Alexis.
. . . After driving around, they spotted Edmond’s car. Cher
stopped and walked to the driver’s side window and she and
Edmond talked of [their] children. There was a restraining order
in effect which limited Cher’s contact with Edmond. Also in
Edmond’s car was a woman named Ashley who was sitting next
to Edmond. As Cher and Edmond talked, Ashley leaned over
and rolled up the car window. Edmond rolled the window back
down. Ashley made a comment about taking care of Cher’s
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2738 | January 21, 2020 Page 2 of 17
children. Cher made a verbal attack of Ashley, who in turn got
out of the car, and a physical altercation occurred between the
two. After two or three minutes, Alexis and Shawnquella broke
up the fight and convinced Cher to return to their car. As they
left, Cher threw a glass orange juice bottle, hitting Edmond’s car
hood.
Cher drove to her house and was claiming to “bust out”
Edmond’s windows. She went into the house, returned with a
hammer, and then headed back to Edmond’s house. Cher,
Alexis, and Shawnquella remained in the car in the positions
previously described.
Cher pulled up next to Edmond’s now unoccupied vehicle. Cher
got out and tried to break a front passenger window [but] failed.
She did succeed in breaking out a rear passenger side window
before hurrying back to [the] car. As [the women] prepared to
leave, one of the women cried out that Edmond was standing at
the right front of the car and pointing a .45 caliber pistol at them.
Four to seven shots were fired by Edmond in rapid succession as
Cher sped away.
. . . Alexis had been shot three times, with the fatal shot entering
her back, perforating her right lung, tearing her ascending aorta,
and exiting through her left breast. The bullet and casings were
from a .45 caliber pistol and were fired from the same weapon.
Except for the hammer, there were no deadly weapons in [the]
car.
During the trial, Shawnquella testified that she had told Cher,
after the shooting started, to run over Edmond with the car.
Other evidence showed that Edmond was never in front of the
car. Edmond rested without putting on witnesses or introducing
evidence.
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Edm. Sel. Cas. v. State, No. 45A03-0610-CR-487, 2007 WL 1651238 at *1–2 (Ind. Ct.
App. June 8, 2007).
[4] On June 21, 2005, the State charged Edmond with one count of murder, two
counts of attempted murder, and two counts of attempted battery with a deadly
weapon. A jury trial was held in July 2006, at the conclusion of which the State
requested the jury be instructed on voluntary manslaughter. The trial court
accepted the instruction over Edmond’s objection. The jury found Edmond
guilty of Class A felony voluntary manslaughter, Class A felony attempted
murder, and Class C felony attempted battery. A sentencing hearing was held
the next month. Edmond was sentenced to forty years for voluntary
manslaughter and forty years for attempted murder, to be served consecutively.
In addition, Edmond’s sentence was enhanced by thirty years due to his status
as an habitual offender, for a total term of imprisonment of 110 years. No
judgment was entered and Edmond was not sentenced for attempted battery.
[5] On direct appeal to this court, Edmond—represented by counsel—challenged
whether the evidence presented at trial was sufficient to rebut his defense of self-
defense and support his conviction for voluntary manslaughter, as well as the
appropriateness of his sentence. We affirmed the trial court’s judgment, and our
supreme court denied transfer.
[6] On September 24, 2015, Edmond filed a petition for post-conviction relief,
stating as grounds for relief that he had received ineffective assistance of trial
and appellate counsel in violation of the Sixth and Fourteenth Amendments to
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the United States Constitution. Specifically, he argued that trial counsel was
ineffective for failing to ensure that the jury was properly instructed regarding
sudden heat and voluntary manslaughter, and that appellate counsel was
ineffective for failing to raise the erroneous jury instruction and trial counsel’s
ineffectiveness on appeal. The post-conviction court held a hearing on the
petition on February 28, 2018, and subsequently issued findings of fact and
conclusions of law denying relief. This appeal followed.
Post-Conviction Standard of Review
[7] Our standard of review for claims of post-conviction court error is well settled:
A post-conviction petitioner bears the burden of establishing
grounds for relief by a preponderance of the evidence. On appeal
from the denial of post-conviction relief, the petitioner stands in
the position of one appealing from a negative judgment. To
prevail on appeal from the denial of post-conviction relief, the
petitioner must show that the evidence as a whole leads
unerringly and unmistakably to a conclusion opposite that
reached by the post-conviction court.
Where, as here, the post-conviction court makes findings of fact
and conclusions of law in accordance with Indiana Post-
Conviction Rule 1(6), we cannot affirm the judgment on any
legal basis, but rather, must determine if the court’s findings are
sufficient to support its judgment. Although we do not defer to
the post-conviction court’s legal conclusions, we review the post-
conviction court’s factual findings under a clearly erroneous
standard. Accordingly, we will not reweigh the evidence or judge
the credibility of witnesses, and we will consider only the
probative evidence and reasonable inferences flowing therefrom
that support the post-conviction court’s decision.
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Manzano v. State, 12 N.E.3d 321, 325 (Ind. Ct. App. 2014) (citations omitted)
trans. denied.
Effective Assistance of Trial Counsel
[8] Edmond first asserts that the post-conviction court erred when it found that he
was not denied the effective assistance of trial counsel. The Sixth Amendment
guarantees criminal defendants the right to counsel and mandates that “the
right to counsel is the right to the effective assistance of counsel.” Strickland v.
Washington, 466 U.S. 668, 686 (1984). In Timberlake v. State, our supreme court
summarized the law regarding claims of ineffective assistance of trial counsel as
follows:
A defendant claiming a violation of the right to effective
assistance of counsel must establish the two components set forth
in Strickland[]. First, the 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 the errors were so serious that they
resulted in a denial of the right to counsel guaranteed the
defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. 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 a probability sufficient to undermine
confidence in the outcome.
753 N.E.2d 591, 603 (Ind. 2001) (citations and quotations omitted).
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[9] Edmond argues that his trial counsel provided ineffective assistance because
trial counsel allowed an erroneous instruction for voluntary manslaughter to be
tendered to the jury. Appellant’s Br. at 7. “There is a strong presumption that
counsel rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” Weisheit v. State, 109 N.E.3d 978,
983 (Ind. 2018). An isolated mistake or instance of bad judgment “do not
necessarily render representation ineffective.” Id. at 984. Our review of the
record reveals that, at the conclusion of Edmond’s trial during which counsel
had presented a self-defense strategy, the State requested the jury be instructed
on the “lesser instruction for murder which is voluntary manslaughter.” 1 Trial
Tr. Vol. II, p. 371.
[State]: . . . I believe that a jury based upon the evidence that
they’ve heard to this point can reasonably return a verdict within
the facts of the case as presented at trial that this defendant killed
– killed the victim who died in this case under sudden heat. . . .
[Edmond]: Your Honor, I would object. . . There is no evidence
in the record that Mr. Edmond was acting under sudden heat or
in an excited manner. To the contrary, the testimony was that in
1
The difference between murder and voluntary manslaughter under Indiana law is the presence in the latter
of sudden heat, which is defined as “anger, rage, resentment, or terror sufficient to obscure the reason of an
ordinary man; [sudden heat] prevents deliberation and premeditation, excludes malice, and renders a person
incapable of cool reflection.” Sanders v. Cotton, 398 F.3d 572, 576 (7th Cir. 2005) (quoting McBroom v. State,
530 N.E.2d 725, 728 (Ind. 1988)). The post-conviction court noted that, although it is a lesser included
offense of murder, it is not a “typical” lesser included offense, because to secure a conviction for voluntary
manslaughter, the State must prove the elements of murder and there must be evidence of sudden heat. See
Watts v. State, 885 N.E.2d 1228, 1233 (Ind. 2008) (holding that it is reversible error to instruct a jury on
voluntary manslaughter in addition to murder in the absence of a serious evidentiary dispute over sudden
heat).
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all respects, Mr. Edmond appeared to be calm. . . . [W]hatever
his reasons were for firing that gun and obviously we’ll take the
position that it was done in self-defense, in any event, if it wasn’t
self-defense, then it certainly was a premeditated murder. There
was a long history of bad blood between Mr. Edmond and Cher
Steward, and if it was not a self-defense, then it was a calculated
premeditated plan which would not entitle him to a voluntary
manslaughter instruction.
[State]: . . . I believe that based upon the evidence that the jury
could reasonably assume that [Edmond] was mad and upset
about Cher Steward breaking out his windows and thus opened
up fire. . .
[The Court]: Clearly the evidence is absent of any direct
statement of the defendant’s rage. . . . On the other hand, the
evidence does show that just prior to the shooting occurring, we
have a person, Cher Steward, who did break out the defendant’s
car windows. I guess the question would be is that sufficient to
suggest to a jury as they consider a verdict that there may be
circumstantial evidence as to rage. . . as to sudden resentment,
anger, rage, a strong emotion that would lead Mr. Edmond to do
what he did, notwithstanding the potential of self-defense? . . .
The fact that the defendant through [counsel] did not request [the
voluntary manslaughter instruction], should I be precluded
[from] granting it to the [S]tate if they requested it? Well, I think
the answer should be no. . . . I think factually, there may be
circumstantial evidence of that rage that may produce the sudden
heat necessary for the voluntary. The facts in this case support a
request for voluntary, and I will grant it. The objection will be
noted[.]
Trial Tr. Vol II, pp. 371–75.
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[10] Subsequently, the jury was instructed on both murder and voluntary
manslaughter over Edmond’s objection to the latter. Our supreme court has
previously explained how this dual instruction in the absence of sudden heat can
prejudice 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.” Such a verdict is not appropriate if unsupported
by any evidence of sudden heat; moreover, an unsupported
voluntary manslaughter instruction deprives the defendant of the
opportunity to pursue a legitimate trial strategy.
Watts v. State, 885 N.E.2d 1228, 1233 (Ind. 2008).
[11] Therefore, in cases like Edmond’s where the State requests instructions on both
murder and voluntary manslaughter, evidence of the distinguishing feature
between the offenses—sudden heat—must have been introduced to the jury and
be in dispute. Only where there is no serious evidentiary dispute regarding
sudden heat may defense counsel’s objection to voluntary manslaughter be
sustained. Id.
[12] Here, the trial court in its sound discretion determined that a voluntary
manslaughter instruction was appropriate, and instructed the jury, in relevant
part, as follows:
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The Defendant is charged with Murder in Count I. Voluntary
Manslaughter, Class A felony, is included in Count I, Murder. If
the State proves the Defendant guilty of murder, you need not
consider the included crime. However, if the State fails to prove
the Defendant committed Murder, you may consider whether the
Defendant committed Voluntary Manslaughter, class A Felony,
which the court will define for you. You must not find the
Defendant guilty of more than one crime for each count.
(a) “A person who knowingly or intentionally kills another
human being while acting under sudden heat commits
voluntary manslaughter. The offense is a Class A felony if it is
committed by means of a deadly weapon.”
(b) “The existence of sudden heat is a mitigating fact that reduces
what otherwise would be Murder to Voluntary
Manslaughter.”
Before you may convict the defendant as charged, the State
must have proved each of the following elements:
1. The defendant
2. Knowingly or intentionally
3. Killed
4. Alexis Hamilton
5. By means of a handgun, a deadly weapon, and;
6. That the defendant did the killing while acting under
sudden heat.
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If the state failed to prove each of these elements beyond a
reasonable doubt, you must find the Defendant not guilty of
Voluntary Manslaughter, a Class A Felony.
Appellant’s App. Vol. III, pp. 21–22.
[13] In line with trial counsel’s all-or-nothing self-defense strategy, trial counsel
objected to this instruction; however, after reviewing the instructions, trial
counsel “indicated that he believed the instruction to be an appropriate
instruction on voluntary manslaughter.” Appellant’s App. Vol. III, p. 25; see
Trial Tr. Vol. II, p. 375. And, we know, the jury went on to determine that the
State had proven all elements of the offense beyond a reasonable doubt,
resulting in Edmond’s conviction for voluntary manslaughter and the failure of
Edmond’s self-defense strategy aimed toward securing his acquittal for murder.
[14] The post-conviction court identified two errors in this voluntary manslaughter
instruction. The first error was the “problematic language” of the instruction,
which directed the jury to consider it as an “included” crime, in the event the
State failed to prove murder. Appellant’s App. Vol. III, pp. 25–26. This is
despite the fact that the first four elements of the voluntary manslaughter
instruction themselves constituted the four elements necessary to prove murder.
See id. at 21. This was error, in the post-conviction court’s words, because
“[a]fter finding that the State had failed to prove the elements of Murder, the
jury went on to find that the State had proven the elements of murder, plus
sudden heat.” Appellant’s App. Vol. III, p. 26 (emphasis added). Despite this
error, the post-conviction court determined that the jury was properly
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instructed, because sudden heat was correctly described as being a mitigating
factor that reduces what would be murder to voluntary manslaughter. Id., citing
McDowell v. State, 102 N.E.3d 924, 937 (Ind. Ct. App. 2018) (addressing the
same erroneous voluntary manslaughter language and determining a jury was
not misinformed regardless of the error, and also that counsel was not
ineffective for failing to object to such an instruction), trans. denied.
[15] The post-conviction court identified the second error in the voluntary
manslaughter instruction as sudden heat being characterized as an element of
the offense, which it is not:
17. . . . When looking at the statutory language for the
[voluntary manslaughter] offense, sudden heat is not listed as an
element. Of course, when the defense requests an instruction for
Voluntary Manslaughter as a lesser-included offense of Murder,
then necessarily the State would bear the burden of disproving
sudden heat in order to secure a conviction of Murder. However,
this logic seems to fail when the State seeks to convict a
defendant of Voluntary Manslaughter [as is the case here]—
either as a lesser-included offense, or as a stand-alone offense.
One would think under that scenario that due process would
require the State to prove sudden heat as an element. But this is
not the law.
18. . . . [In 2018, t]he [Indiana] Supreme Court reiterated that
sudden heat is not an element of Voluntary Manslaughter, but
instead a mitigating factor. . . .[T]he State must prove the
elements of murder and there must be some evidence of the
sudden-heat mitigating factor for a defendant to be found guilty
of voluntary manslaughter.
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Appellant’s App. Vol. III, pp. 26–27, citing In re Winship, 397 U.S. 358 (1970);
Brantley v. State, 91 N.E.3d 566, 572 (Ind. 2018) (internal citations omitted,
emphases original to post-conviction court’s order).
[16] The post-conviction court reasoned that, although the voluntary manslaughter
instruction erroneously and imprecisely included sudden heat as an element of
the offense, the error was harmless because it held the State to a higher burden
of proof; that is to say, as written, the jury was instructed to find Edmond not
guilty of voluntary manslaughter unless the State proved the “element” of
sudden heat beyond a reasonable doubt, which is more than is required by law.
Appellant’s App. Vol. III, p. 27, citing Brantley, 91 N.E.3d 566. All that is
required, as noted above, is that a serious evidentiary dispute regarding the
presence of sudden heat is before the jury.
[17] The post-conviction court ultimately found that the objection to the voluntary
manslaughter instruction lodged by Edmond’s counsel was unlikely to have
been sustained because the specific wording of sudden heat as an “element” of
the offense was standard at the time.2 Furthermore, the post-conviction court
found that Edmond was not prejudiced because, even though the voluntary
manslaughter instruction contained errors, it held the State to a higher-than-
2
At the time of Edmond’s trial in 2007, some pattern jury instructions for voluntary manslaughter apparently
still referred to sudden heat as an element, despite definitive statements to the contrary by our supreme court,
including this from Boesch v. State, 778 N.E.2d 1276, 1279 (Ind. 2002): “It is well settled in Indiana that
sudden heat is not an element of voluntary manslaughter.”
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required standard of proof and was part of a series of instructions that, as a
whole, properly instructed the jury:
16. . . . Voluntary Manslaughter was correctly defined in the
instruction, and included the language that sudden heat was a
mitigating factor, and that if the State failed to prove each of the
elements of Voluntary Manslaughter, they should find the
defendant not guilty. The only significant distinction between the
instructions in [another case with problematic voluntary
manslaughter instructions] and the instructions in this case is that
[the other case’s] instruction informed the jury that the State bore
the burden of disproving sudden heat [in order to prove murder].
In this case at bar, the jury was instructed that sudden heat was
an element of Voluntary Manslaughter that had to be proven by
[the] State.
Appellant’s App. Vol. III, p. 26, citing McDowell, 102 N.E.3d 924 (emphasis
added).
[18] Based on these findings, the post-conviction court concluded that Edmond had
failed to prove either prong of the Strickland test, and therefore had not been
denied effective assistance of trial counsel. Because the post-conviction court’s
conclusion that Edmond was not denied effective assistance of trial counsel is
supported by sufficient evidence, we affirm the post-conviction court’s
judgment on this issue.
Effective Assistance of Appellate Counsel
[19] Edmond’s second assertion is that the post-conviction court erred when it found
that he was not denied the effective assistance of appellate counsel. Edmond
argued that his appellate counsel rendered deficient representation on appeal for
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(1) failing to raise the errors in the voluntary manslaughter jury instruction, and
(2) failing to raise the issue of trial counsel effectiveness. Appellant’s Br. at 7.
Our standard of review for post-conviction claims of ineffective assistance of
appellate counsel is the same as our review of trial counsel effectiveness. Ward
v. State, 969 N.E.2d 46, 75 (Ind. 2012). The post-conviction petitioner must
demonstrate that appellate counsel’s performance fell below an objective
standard of reasonableness, and that there was a reasonable possibility that, but
for the deficient performance of appellate counsel, the result of the appellate
proceeding would have been different. Harris v. State, 861 N.E.2d 1182, 1186–87
(Ind. 2007).
[20] The three categories of ineffective assistance of appellate counsel claims are:
“(1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present
issues well.” Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). Edmond’s claims
fall into the second category, waiver of issues, and thus we evaluate whether the
unraised issues—appellate counsel’s failure to raise instructional error and trial
counsel’s effectiveness—are significant and obvious from the face of the trial
court record and whether the unraised issues are “clearly stronger” than the
issues that were raised. See id. We note that failure by appellate counsel to raise
an issue on direct appeal rarely constitutes ineffective assistance, because the
decision about which issues to raise on appeal is one of the most important
strategic decisions made by appellate counsel, and great deference is afforded to
appellate counsel’s strategic decision-making. See Taylor v. State, 717 N.E.2d 90,
94 (Ind. 1999).
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[21] The sole issue raised by appellate counsel was whether the evidence was
sufficient to support Edmond’s convictions for voluntary manslaughter and
attempted murder, thereby rebutting Edmond’s self-defense claim. Edmond v.
State, No. 45A03-0610-CR-487, 2007 WL 1651238 at *1 (Ind. Ct. App. June 8,
2007). To demonstrate that he received ineffective assistance of appellate
counsel, Edmond was required to show that appellate counsel’s decision to
challenge the sufficiency of the evidence could not be explained by any
reasonable strategy.
[22] The post-conviction court determined that Edmond had not met his burden
concerning ineffective assistance of appellate counsel for much the same reason
that it found Edmond had not demonstrated that he received ineffective
assistance of trial counsel. It was “clearly a strategic decision” by trial counsel
to not request the voluntary manslaughter instruction, and trial counsel duly
objected to the instruction because it eroded the success of Edmond’s self-
defense defense at trial. Appellant’s App. Vol. III, p. 27.
[23] Although the instruction contained errors, as explained supra, as a whole, the
jury was not misled as to a correct statement of the voluntary manslaughter law.
Thus, it was reasonable for appellate counsel to decline to raise the erroneous
instruction and trial counsel’s effectiveness in relation to the erroneous
instruction. Neither issue was a part of appellate counsel’s reasonable strategy:
to contest whether the evidence sufficiently rebutted Edmond’s self-defense
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claim on appeal.3 In addition, as explained supra, the erroneous instruction was
standard at the time and did not diminish the correctness of the instructions as a
whole, and trial counsel pursued a reasonable, all-or-nothing self-defense
strategy at trial. Finally, it cannot be said that but for appellate counsel’s
strategy, Edmond’s convictions would have been overturned based on the
strength of the issues that appellate counsel declined to raise on appeal.
Conclusion
[24] For all of these reasons, we affirm the post-conviction court’s denial of
Edmond’s petition for post-conviction relief.
[25] Affirmed.
May, J., and Brown, J., concur.
3
Additionally, we note that post-conviction proceedings are the preferred forum for adjudicating claims of
ineffective assistance of trial counsel, as opposed to adjudicating such claims on direct appeal. This is
preferred because ineffective assistance of counsel claims typically require the development of new facts not
present in the trial record. McIntire v. State, 717 N.E.2d 96 (Ind. 1999). To the extent Edmond’s appellate
counsel based his strategy on this guidance, declining to raise ineffective assistance of trial counsel as part of
Edmond’s direct appeal was eminently reasonable.
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