Brandon Hicks v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Oct 29 2019, 10:56 am
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.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General of Indiana
Meggan E. Smith Ellen H. Meilaender
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brandon Hicks, October 29, 2019
Appellant-Petitioner, Court of Appeals Case No.
19A-PC-1177
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Sheila A. Carlisle,
Appellee-Respondent Judge
Trial Court Cause No.
49G03-1509-PC-34015
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1177 | October 29, 2019 Page 1 of 17
[1] Brandon Hicks appeals the denial of his petition for post-conviction relief,
arguing that the post-conviction court erroneously determined that he did not
receive the ineffective assistance of appellate counsel. Finding no error, we
affirm.
Facts
[2] The underlying facts, as described by this Court in Hicks’s direct appeal, are as
follows:
During the evening of September 22, 2012, Hicks was at Bubba’s
Bar & Grill (Bubba’s) in Indianapolis, Indiana, with friends. On
that night, Josh Bolin (Bolin) was bartending at the bar.
According to Hicks, he and Bolin had known each other for a
few years through their mutual work as drug dealers. After
exchanging pleasantries, Bolin invited Hicks to an after-party at
his house and explained that there would be high-end marijuana
there. In response, Hicks stated that he had his own marijuana.
This led to Bolin “sucker-punch[ing]” Hicks in his “mouth and
nose area.” Hicks then “pulled himself back up to the bar, and
[Bolin] hit [him] again and knocked [him] down to the ground.”
After the altercation, Hicks sat in the parking lot outside of
Bubba’s and called the police. . . . There was no follow-up
conversation with the police about this altercation, and no arrests
were made.
On November 12, 2012, at approximately 10:30PM, Hicks and
his friends, Graham Girgenti (Girgenti) and Misty Girgenti
(Misty), went to Krazy Street Bar & Grill (the Bar) in
Indianapolis, Indiana, to watch Monday Night Football. There
were about thirty to thirty-five people at the bar. Shortly after
their arrival, Hicks saw Bolin enter the Bar with friends.
According to Hicks, he became afraid when he saw Bolin come
in, so he called his brother, Ronald Hicks (Ronald), to inform
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him that Bolin was there. Ronald told Hicks that he was on his
way to pick him up.
Soon after Hicks finished talking to his brother, Bolin
approached him. Hicks stood up and words were exchanged, but
no one else could hear what they were saying because of the
noise in the bar. Hicks testified that Bolin told him,
“Motherfucker, I will kill you.” There was no yelling, but the
two men were only one foot away from each other. Shortly
thereafter, Bolin punched Hicks in the face. The punch caused
Hicks to fall back slightly, and he reached for his .40 Smith and
Wesson semi-automatic handgun that was concealed in an inner
holster inside his pants. Hicks pointed the gun at Bolin and fired.
Hicks testified that he and Bolin struggled for the gun after the
first shot. Hicks was able to free himself by firing two additional
shots at Bolin. In total, Hicks shot Bolin three times. . . .
. . . Bolin died at the scene as a result of the gunshot wounds.
Hicks v. State, No. 49A02-1308-CR-739, at *1-2 (Ind. Ct. App. July 15, 2014)
(internal citations omitted). On November 15, 2012, the State charged Hicks
with Class A felony murder and Class A misdemeanor possession of marijuana.
[3] Hicks’s jury trial took place on July 23-24, 2013. Hicks’s primary theory of the
case was that he acted in self-defense. The jury instruction on self-defense read
as follows:
It is an issue whether the Defendant acted in self-defense.
A person may use reasonable force against another person to
protect himself from what the defendant reasonably believes to be
the imminent use of unlawful force. A person is justified in using
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deadly force, and does not have a duty to retreat, only if he
reasonably believes that deadly force is necessary to prevent
serious bodily injury to himself or a third person or to prevent the
commission of a forcible felony. However, a person may not use
force if:
• He is committing a crime that is directly and immediately
connected to the confrontation;
• He is escaping after the commission of a crime that is directly and
immediately connected to the confrontation;
• He provokes a fight with another person, with intent to cause
bodily injury to that other person; or
• He has willingly entered into a fight with another person or started
the fight, unless he withdraws from the fight and communicates to
the other person his intent to withdraw and the other person
nevertheless continues or threatens to continue the fight.
The State has the burden of proving beyond a reasonable doubt
that the Defendant did not act in self-defense.
PCR Tr. Ex. 6. And the jury was instructed on murder and its lesser-included
offenses as follows:
The crime of Murder is defined by law as follows:
A person who knowingly or intentionally kills another human
being, commits Murder, a Felony.
Included in the charge in this case is the crime of Voluntary
Manslaughter, which is defined by law as follows:
A person who knowingly or intentionally kills another human
being while acting under sudden heat commits Voluntary
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Manslaughter, a Class B Felony. The offense is a Class A Felony
if it is committed by means of a deadly weapon.
Sudden heat is a mitigating factor that reduces what otherwise
would be murder to voluntary manslaughter. The State has the
burden of proving beyond a reasonable doubt that the Defendant
was not acting under sudden heat.
Before you may convict the Defendant, the State must have
proven each of the following beyond a reasonable doubt:
1. The Defendant, Brandon Hicks
2. Knowingly
3. Killed
4. Another human being, namely: Joshua Bolin
5. And the Defendant was not acting under sudden heat
6. And the Defendant killed by means of a deadly weapon,
that is: a handgun
If the State failed to prove each of these elements 1 through 4
beyond a reasonable doubt, you must find the Defendant not
guilty of Murder as charged in Count I.
If the State did prove each of these elements 1 through 4 and
element 6 beyond a reasonable doubt, but the State failed to
prove beyond a reasonable doubt element 5, you may find the
Defendant guilty of Voluntary Manslaughter, a Class A Felony, a
lesser included offense of Count I.
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If the State did prove each of these elements 1 through 5 beyond
a reasonable doubt, you may find the Defendant guilty of
Murder, a Felony as charged in Count I.
If you find the Defendant did not commit Murder or Voluntary
Manslaughter, you may consider whether or not the Defendant
committed Reckless Homicide, a Class C Felony.
The Crime of Reckless Homicide is defined by law as follows:
A person who recklessly kills another human being commits
Reckless Homicide, a Class C Felony.
Before you may convict the Defendant, the State must have
proved each of the following elements:
1. The Defendant, Brandon Hicks
2. Recklessly
3. Killed
4. Another human being, namely: Joshua Bolin
If the State failed to prove each of the following [sic] elements
beyond a reasonable doubt, you must find the Defendant not
guilty of Reckless Homicide a Class C Felony as included in
Count I.
Id. Hicks’s trial counsel did not object to these jury instructions.
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[4] The jury found Hicks not guilty of murder but guilty of voluntary manslaughter
and possession of marijuana, and on August 7, 2013, the trial court sentenced
Hicks to an aggregate term of forty years imprisonment. Hicks filed a direct
appeal. Appellate counsel raised the following arguments: (1) the trial court
erred in sentencing Hicks; and (2) trial counsel was ineffective for multiple
reasons. Appellate counsel did not raise the jury instructions, either as a stand-
alone issue or in the context of ineffective assistance of trial counsel.
[5] This Court affirmed. Relevant to this appeal is appellate counsel’s contention
that trial counsel was ineffective for failing to argue the elements of self-defense
in a diligent manner. We disagreed, focusing on the evidence in the record
related to self-defense:
The State had the burden of rebutting at least one element of self-
defense. A review of the State’s evidence shows that Bolin was
unarmed and attacked Hicks by punching him with his fist. The
State’s primary argument was that Hicks’ use of a gun to defend
himself against Bolin, who was unarmed, was excessive and thus
unreasonable. The self-defense statute requires that the force
used to protect oneself is reasonable and “the [jury] is not
precluded from finding that a defendant used unreasonable force
simply because the victim was the initial aggressor.” Birdsong v.
State, 685 N.E.2d 42, 45 (Ind. 1997). Hence, the State provided
evidence to rebut at least one element of Hicks’ self-defense claim
and the jury could reasonably decide that Hicks did not act in
self-defense. Because the State did not fail to rebut at least one
element of self-defense at trial, trial counsel was not ineffective by
not addressing it as thoroughly as Hicks wanted her to.
Hicks, 49A02-1308-CR-739, at *6.
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[6] On September 23, 2015, Hicks filed a pro se petition for post-conviction relief,
which was later amended by counsel. Hicks argued that he received the
ineffective assistance of appellate counsel based, in relevant part, on the
following arguments: (1) appellate counsel should have argued that the jury
instructions were fundamentally erroneous; and (2) appellate counsel should
not have raised the ineffective assistance of trial counsel as part of a direct
appeal. The post-conviction court held an evidentiary hearing on Hicks’s
petition on February 20, 2018, and denied Hicks’s petition on May 1, 2019. 1
Hicks now appeals.
Discussion and Decision
I. Standard of Review
[7] The general rules regarding the review of a ruling on a petition for post-
conviction relief are well established:
“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-
1
The record does not reveal the reason for the lengthy delay between the evidentiary hearing and the post-
conviction court’s ruling.
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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).
[8] Hicks’s primary argument on appeal is that the post-conviction court
erroneously determined that he did not receive the ineffective assistance of
appellate counsel. To establish ineffective assistance of appellate counsel, the
petitioner must show that (1) appellate counsel was deficient in his or her
performance, and (2) the deficiency resulted in prejudice. Id. at 269. Failure to
satisfy either prong will cause the claim to fail. Henley v. State, 881 N.E.2d 639,
644 (Ind. 2008). To satisfy the first prong, the defendant must show that
counsel’s representation fell below an objective standard of reasonableness,
committing errors so egregious that the defendant did not have the counsel
guaranteed by the Constitution. Hollowell, 19 N.E.3d at 269. To satisfy the
second prong, the defendant must show a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been different. Id.
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II. Assistance of Appellate Counsel
A. Failure to Raise Jury Instructions
[9] Hicks first argues that appellate counsel was ineffective for failing to argue, in
the direct appeal, that the jury instructions were fundamentally erroneous. In
considering whether appellate counsel performed deficiently by failing to raise
an issue, we determine (1) whether the unraised issue is significant and obvious
from the face of the record, and (2) whether the unraised issue is clearly
stronger than the issues that were raised on appeal. Bieghler v. State, 690 N.E.2d
188, 194 (Ind. 1997). In evaluating prejudice, we examine whether the unraised
issue would have been “‘clearly more likely to result in reversal or an order for a
new trial.’” Id. (quoting Gray v. Greer, 800 F.2d 644, 647 (7th Cir. 1986)).
[10] Hicks’s trial counsel did not object to the jury instructions; consequently,
appellate counsel would have had to have shown fundamental error to warrant
relief on this issue. The fundamental error exception is extremely narrow and
applies only to an egregious error that constitutes a blanket denial of due
process, rendering a fair trial impossible. E.g., Ryan v. State, 9 N.E.3d 663, 668
(Ind. 2014). To rise to the level of fundamental error, the matter must be one
that the trial court had a duty to correct sua sponte. Id.[11] The purpose of a jury instruction is to inform the jury of the law applicable to
the facts without misleading the jury and to enable it to comprehend the case
clearly. Buckner v. State, 857 N.E.2d 1011, 1015 (Ind. Ct. App. 2006).
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Therefore, the jury instructions are to be considered as a whole, and reversal is
not appropriate unless the instructions as a whole mislead the jury. Id.[12] Hicks directs our attention to the jury instruction describing the elements of
murder and its lesser-included offenses. He argues that the instruction “omitted
an essential element—that Hicks ‘was not acting in defense of a person’—that
the jury must find before finding Hicks guilty.” Appellant’s Br. p. 21. With this
omission, Hicks insists that the roadmap omitted one path to acquittal of
murder and its lesser-included offenses.
[13] Self-defense is not an element of the crime of murder or its lesser-included
offenses. Ind. Code §§ 35-42-1-1 (murder), -3 (voluntary manslaughter), -5
(reckless homicide). Instead, it is a defense of justification, “admitting that the
facts of the crime occurred but contending that the acts were justified. As such,
these [justification] defenses negate no element of the crime.” Moon v. State,
823 N.E.2d 710, 716 (Ind. Ct. App. 2005) (omitting internal citations).
[14] Although a jury must be informed of the State’s burden to disprove a claim of
self-defense—as it was in this case—Hicks cites to no authority holding that this
burden must be included in the list of enumerated elements that the State is
required to prove to convict, rather than by including that requirement in a
different instruction. We can only find that because self-defense is not an
element of the charged crimes, there is no requirement that it be included in the
instruction describing the elements of those charges.
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[15] Hicks observes that the introduction to pattern jury instruction 10 provides that
when the State has the burden of persuasion related to a defense, such as with
self-defense, the following instruction should be incorporated into the
instruction on the elements of the crime: “If the State failed to prove each of
these elements [including the absence of self-defense] beyond a reasonable
doubt, you must find the Defendant not guilty of [charged offense].” Ind.
Pattern Crim. Jury Inst. 10 INTRO. It is true that in Indiana, the preferred
practice is to use the pattern jury instructions. E.g., Santiago v. State, 985 N.E.2d
760, 763 (Ind. Ct. App. 2013). But Hicks points to no authority standing for the
proposition that use of the pattern instructions is required. Indeed, pattern jury
instructions are not always upheld as correct statements of law. E.g., Harrison v.
State, 32 N.E.3d 240, 252 n.5 (Ind. Ct. App. 2015); Albores v. State, 987 N.E.2d
98, 102 (Ind. Ct. App. 2013). Therefore, the mere fact that the jury instruction
at issue here did not wholly mimic the pattern jury instruction is insufficient to
show fundamental error.
[16] As noted above, jury instructions are not viewed in isolation; they are viewed as
a whole and in reference to each other. McDowell v. State, 102 N.E.3d 924, 935-
37 (Ind. Ct. App. 2018) (holding that although voluntary manslaughter
instruction was worded incorrectly, instructions as a whole properly instructed
the jury on the law regarding voluntary manslaughter), trans. denied. Moreover,
the jury was specifically instructed to consider the instructions as a whole and
construe every instruction “in connection with, and in light of, every other
instruction given.” PCR Tr. Ex. 6. Defense counsel told the jury that the
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instructions on murder and self-defense “fit together” and should be considered
in tandem. Trial Tr. Vol. II p. 414.
[17] Hicks finds no fault with the jury instruction on self-defense. Indeed, the
instruction informed the jury that people may use force to protect themselves
when certain circumstances exist and that the State had to prove beyond a
reasonable doubt that Hicks had not acted in self-defense in this case. PCR Tr.
Ex. 6. When the instructions are viewed as a whole, therefore, we can only find
that reasonable jurors would have understood that if Hicks had a valid claim of
self-defense that was not disproved by the State, he was not guilty of a criminal
offense. Therefore, even if it may have been better to have included the State’s
burden regarding self-defense in the instruction on the elements of the charged
offenses, any deficiency was cured by the self-defense instruction.
[18] Hicks first responds that during closing arguments, both trial counsel and the
prosecutor told the jury that self-defense was a defense to murder, but did not
further explain that it is also a defense to the lesser-included offenses. Second,
he notes that, while the self-defense instruction explains that the State must
prove beyond a reasonable doubt that Hicks did not act in self-defense, the
instructions did not tell the jury what to do (i.e., acquit) if it found that the State
failed to meet that burden.
[19] We do not find these arguments persuasive. We decline to operate from the
premise that Indiana jurors are unintelligent. During Hicks’s trial, the
attorneys’ arguments were focused on murder because that was the lead charge;
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but neither the arguments nor the jury instructions suggested that Hicks’s claim
of self-defense did not apply to the lesser-included offenses. Indeed, the self-
defense instruction stated that a person is justified in using “deadly force,” not
that he is not guilty of “murder,” when it is necessary to protect him self from
serious bodily injury. PCR Tr. Ex. 6. Voluntary manslaughter and reckless
homicide are both examples of the use of deadly force.
[20] Moreover, we neither expect nor wish for our jurors to ignore the knowledge
with which they enter the courtroom. Instead, we instruct them to use that
knowledge. E.g., Buckner, 857 N.E.2d at 1016. Reasonable jurors would know
that the right of self-defense is not limited to murder and would understand that
self-defense applies equally to other forms of homicide or non-homicide
charges. Reasonable jurors would also know that if the State failed to prove
beyond a reasonable doubt that Hicks did not act in self-defense, they would
have to acquit Hicks. Therefore, there is no basis for concluding that the jury
might have believed that (1) self-defense was not a defense to the lesser-included
charges, or (2) it could convict even if the State failed to meet its burden with
respect to the self-defense claim. Under these circumstances, appellate counsel
could not have established fundamental error based on the jury instructions.
[21] In sum, we find that Hicks’s argument regarding jury instructions was neither
significant and obvious from the face of the record nor clearly stronger than the
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issues raised by appellate counsel in the direct appeal. Moreover, the issue
would not likely have resulted in a reversal or a new trial.2
B. Decision to Argue Assistance of Trial Counsel
[22] Hicks also argues that appellate counsel was ineffective because she raised the
issue of the effectiveness of trial counsel in Hicks’s direct appeal. The State
concedes that “as a general rule, the better practice is to wait to raise [ineffective
assistance of counsel] claims on post-conviction.” Appellee’s Br. p. 27. We
agree, given that if a defendant raises a claim of ineffective assistance of counsel
on direct appeal, he is procedurally barred from raising the claim again on post-
conviction. E.g., Woods v. State, 701 N.E.2d 1208, 1220 (Ind. 1998).
[23] For argument’s sake, we will assume that it was deficient performance in this
case for appellate counsel to have raised ineffective assistance of trial counsel
claims in Hicks’s direct appeal. That does not end our inquiry, however, as
Hicks must still prove that he was prejudiced by that decision. In other words,
he must show that he has a meritorious ineffective assistance of trial counsel
claim that he could have raised on post-conviction but for the procedural bar
created by the direct appeal. Ben-Yisrayl, 738 N.E.2d at 261-62.
2
Hicks’s appellate counsel did not testify at the post-conviction hearing. The post-conviction court inferred
from counsel’s absence that, had she been present to testify, she would not have corroborated the claims of
ineffectiveness. Appealed Order p. 16. Hicks argues that this inference is inappropriate because he tried on
multiple occasions to secure her presence at the hearing, but she did not respond to his mailings. The post-
conviction court also noted that the inference was not dispositive, and its ruling would have been the same
without it. We, likewise, do not rely on any such inference in reaching our result, and decline to consider
Hicks’s argument that the post-conviction court erred on this basis.
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[24] The only purported meritorious ineffective assistance of trial counsel claim
advanced by Hicks is trial counsel’s failure to object to the allegedly incomplete
elements instruction and/or tender an instruction that included the “element”
that Hicks maintains was omitted from the elements instruction. For the
reasons discussed above, trial counsel was not deficient for failing to make this
objection or tender this instruction, and Hicks was not prejudiced by the lack of
an objection. Had trial counsel made such an objection, it would not have been
sustained because the jury instructions as a whole were sufficient. E.g., Curtis v.
State, 905 N.E.2d 410, 418 (Ind. Ct. App. 2009) (holding that to demonstrate
deficient performance for failing to object, a petitioner must show that the trial
court would have had no choice but to sustain the objection, had it been made).
Therefore, even if the instruction issue had been preserved for post-conviction
proceedings, there is no reasonable probability that raising the issue would have
resulted in a different outcome.
[25] Finally, we note that this Court found on direct appeal that the State had, in
fact, disproved the claim of self-defense beyond a reasonable doubt because
Hicks used objectively unreasonable force under the circumstances. Hicks, No.
49A02-1308-CR-739, at *6. He shot an unarmed man multiple times in
response to a single punch thrown that did not inflict any visible injury, much
less any serious injury. Id. at *3 (noting that Hicks’s “use of a deadly weapon in
response to a punch was excessive, and there were many options that were
available to him to avoid an altercation”). Because the evidence proved that
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Hicks’s conduct was not a justified act of self-defense, he cannot have been
prejudiced by any inadequacy in the jury instructions regarding self-defense.
[26] In sum, while it may have been inadvisable for appellate counsel to have raised
ineffective assistance of trial counsel in Hicks’s direct appeal, he has not and
cannot show prejudice as a result of that decision. Therefore, the post-
conviction court did not err by denying his claim on this basis.
[27] The judgment of the post-conviction court is affirmed.
Kirsch, J., and Crone, J., concur.
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