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Pursuant to Ind.Appellate Rule 65(D), this 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: SUSAN K. CARPENTER Public Defender of Indiana AMY E. KAROZOS Special Assistant to the Public Defender Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana GARY DAMON SECREST Chief Counsel & Deputy Attorney General SCOTT L. BARNHART Deputy Attorney General

IN THE COURT OF APPEALS OF INDIANA
CHARLES ETIENNE, Appellant-Petitioner, vs. STATE OF INDIANA, Appellee-Respondent. ) ) ) ) ) ) ) ) )

No. 40A04-0705-PC-272

APPEAL FROM THE JENNINGS CIRCUIT COURT The Honorable Jon W. Webster, Judge Cause No. 40C01-9604-CF-433

December 31, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION VAIDIK, Judge

Case Summary Charles Etienne ("Etienne") appeals the post-conviction court's denial of his petition for post-conviction relief from his conviction and sentence for murder. Specifically, Etienne contends that his trial counsel was ineffective for (1) failing to tender an instruction on voluntary manslaughter, (2) failing to object or request a continuance when the State introduced a videotape that was not properly transcribed before trial, and (3) failing to object to a jury instruction regarding intent. He also argues that he received ineffective assistance of appellate counsel for failing to challenge the identification of the impact on the victim's family as an aggravating circumstance. Finding that neither counsel was ineffective, we affirm the post-conviction court. Facts and Procedural History Throughout the evening of April 29, 1996, Etienne, his step-brother Joe Grider ("Grider"), and Shane and Luke Brown ("Shane" and "Luke," respectively, or the "Browns") played pool and drank together at the Eagles Club in North Vernon. The Brown brothers, accompanied at the bar by their friend James Lonaker ("Lonaker"), were vacationing from Australia and had never previously met Etienne and Grider. After a while, the men began wagering beer and then money on the pool games. After Etienne and Grider won several games, a fight erupted. After the bartender ordered the Browns to leave, all four men ended up outside of the bar. Our Supreme Court's opinion in Etienne's direct appeal describes the ensuing events: According to Lonaker, Grider grabbed Luke, the two wrestled on the ground and Etienne ran from the scene. Luke soon had Grider in a 2

headlock, and Shane told Luke not to let go of Grider because "he's going to give up in a minute . . . ." Lonaker then saw Etienne running toward the men "with a gun straight out in front of him," heard Shane tell Etienne to put the gun down, and saw Etienne shoot Shane. Lonaker attempted to grab the gun, but Etienne stepped back, fired a shot over Lonaker's head, and said that he would "kill everyone of you mother fuckers." Luke Brown offered a similar account. Luke testified that as he and Grider were wrestling on the ground he heard someone say something about a gun, then heard Grider tell Etienne that there was "no need for that-put it away" and looked up to see Etienne walk "straight up and just shoot Shane." Although Luke did not remember hearing any subsequent shots, he testified that there could have been more. Grider testified that, while he and Luke were wrestling on the ground, he saw Shane "swing on" or "shove" Etienne. Grider was either rendered unconscious or "had the wind knocked out of [him]" during his altercation with Luke and was unable to recall some of the events but did hear a gunshot. Finally, Etienne testified that upon leaving the Eagles he saw Luke standing at the edge of the sidewalk. Etienne asked Luke how he was doing and Luke responded that he was waiting for Grider. Etienne told Luke that "fighting wasn't going to settle anything" and then Grider exited the club. Luke walked toward Grider, pushing Etienne to the side. Shane then exited the club and pushed Etienne onto some gravel. Grider and Luke then started screaming at each other. According to Etienne, he told Shane that he was not going to fight but Shane said "yes you are. We're going to fight." Etienne then turned and ran to his truck, pulled his gun from the console, and returned to the front of the club where Grider and Luke were fighting. Etienne screamed at Shane "[a]t least twice" to get Luke off of Grider. Shane told Etienne that he was going to "kick [Etienne's] fucking ass," and Etienne responded that he had a gun and showed the gun to Shane. Because Etienne believed that Shane was unaffected by his threat, he fired a shot over Shane's head. Etienne continued to scream at Shane to get Luke off of Grider, but Shane did not comply and instead stepped forward toward Etienne. According to Etienne, he backed away from Shane and told Shane "don't make me shoot you," but Shane "kept yelling he was going to kick my ass." Etienne then shot Shane. He agreed in cross-examination that he "pulled the trigger on purpose" and "meant to hit [Shane] with that bullet," but testified that he intended to hit Shane in the shoulder and not the chest. Shane died as the result of a single gunshot wound to the lower part of the heart. Etienne v. State, 716 N.E.2d 457, 459-460 (Ind. 1999). 3

In the early morning hours of April 30, 1996, Etienne gave several statements to the police. exchange: [Officer]: I don't understand what you said about how you shot [Shane] in the chest. [Etienne]: Well I tried to shoot him right there when I was shooting him. Pet. Ex. A p. 507. However, when this videotape ("the videotape") was later transcribed, for unknown reasons, the transcript did not include this exchange. The State charged Etienne with murder. During his jury trial, the transcript of Etienne's police interview was admitted without objection. The videotape itself was then admitted without objection and played to the jury, after which defense counsel indicated that he had not been aware of the final exchange. Id. at 509. However, he did not object or request a continuance. The court read its final instructions to the jury, including Jury Instruction 16, which is reproduced later in this opinion. The jury then deliberated and returned a verdict of guilt. At the conclusion of a sentencing hearing on September 11, 1997, the trial court identified the following three aggravating circumstances: (1) the risk that Etienne would commit another crime, (2) Etienne's prior criminal history, and (3) the statements of the victim's family. Pet. Ex. A p. 274. In mitigation, the trial court found the following: (1) Etienne was gainfully employed, (2) he had custody of his minor child, and (3) Etienne had a reputation in the community for being a good father. Id. The court then concluded that the aggravators outweighed the mitigators and sentenced Etienne to sixty years in the Department of Correction. Id. 4 His first statement, which was videotaped, ended with the following

Etienne challenged his conviction on direct appeal, arguing, among other things, that the State committed a discovery violation rising to the level of fundamental error by providing a transcript of Etienne's police interview that did not include the entire exchange recorded on the videotape. Our Supreme Court rejected this argument, finding that Etienne suffered no prejudice from the alleged discovery violation. Etienne, 716 N.E.2d at 462. The Court then rejected Etienne's other arguments and affirmed his conviction. Etienne filed a pro se petition for post-conviction relief on January 20, 2000. On May 19, 2006, by counsel, he filed an amended petition. His amended petition for postconviction relief alleged that he received ineffective assistance of trial counsel because his trial attorney: (1) "did not tender an instruction on voluntary manslaughter as a lesser included offense of murder," (2) "did not object, request a continuance or take other corrective action when the state introduced damaging inculpatory evidence [on the videotape] of which counsel was not aware prior to trial," and (3) "did not object to [Jury Instruction 16] which unconstitutionally shifted the burden of proof on the element of intent." Appellant's App. p. 29. He also argued that he received ineffective assistance of appellate counsel because his attorney on direct appeal did not argue that the trial court improperly identified the impact on the victim's family as an aggravating circumstance. Id. at 36. After a hearing, the post-conviction court denied relief. Etienne now appeals. Discussion and Decision On appeal, Etienne raises the same four issues that he argued to the postconviction court: that his trial counsel was ineffective for failing to tender an instruction 5

on voluntary manslaughter, for failing to object or request a continuance when the State introduced the videotape, and for failing to object to Jury Instruction 16, and that he received ineffective assistance of appellate counsel because his attorney on direct appeal did not argue that the trial court improperly identified the impact on the victim's family as an aggravating circumstance. Id. at 29. The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). The post-conviction court is the sole judge of the evidence and the credibility of witnesses. Hall v. State, 849 N.E.2d 466, 468 (Ind. 2006). When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). The reviewing court will not reverse the judgment unless the evidence unerringly and unmistakably leads to the opposite conclusion. Patton v. State, 810 N.E.2d 690, 697 (Ind. 2004). We will reverse a post-conviction court's findings and judgment only upon a showing of clear error, which is that which leaves us with a definite and firm conviction that a mistake has been made. Hall, 849 N.E.2d at 468. The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to effective assistance of counsel. Koons v. State, 771 N.E.2d 685, 690 (Ind. Ct. App. 2002), trans. denied. We review the effectiveness of trial and

appellate counsel under the two-part test provided by Strickland v. Washington, 466 U.S. 668 (1984). Bieghler v. State, 690 N.E.2d 188, 192-93 (Ind. 1997). To succeed on his ineffective assistance claims, Etienne must demonstrate that counsel's performance fell 6

below an objective level of reasonableness based upon prevailing professional norms and that the deficient performance resulted in prejudice. Strickland, 466 U.S. at 687-88. "Prejudice occurs when the defendant demonstrates that `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Grinstead v. State, 845 N.E.2d 1027, 1030 (Ind. 2006) (quoting Strickland, 466 U.S. at 694)). We begin by noting that our Supreme Court has already addressed whether Etienne was prejudiced by the introduction of the contents of the videotape. Etienne argues that the final exchange contained in the videotape "changed his entire defense." Appellant's Br. p. 6. However, Etienne made a similar argument on direct appeal, contending that the State committed a discovery violation, rising to the level of fundamental error, by not alerting him to the final exchange in the videotape prior to trial. In its opinion on Etienne's direct appeal, our Supreme Court wrote, "[W]e fail to see how Etienne was prejudiced because his other accounts to the police and his testimony at trial were to the effect that he intentionally shot Shane, albeit in self-defense." Etienne, 716 N.E.2d at 462. "Although differently designated, an issue previously considered and determined in a defendant's direct appeal is barred for post-conviction review on grounds of prior adjudication

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