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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 ANNE-MARIE ALWARD Special Assistant to the State Public Defender Indianapolis, Indiana ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

Jul 13 2010, 10:06 am

IN THE COURT OF APPEALS OF INDIANA
WILLIAM D. BAXTER, Appellant, vs. STATE OF INDIANA, Appellee. ) ) ) ) ) ) ) ) )

CLERK

No. 49A02-0908-PC-724

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Kurt M. Eisgruber, Judge Cause No. 49G01-0311-PC-197036

July 13, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION MAY, Judge

William D. Baxter appeals the denial of his petition for post-conviction relief. As he demonstrated his trial and appellate counsel were ineffective, we reverse. FACTS AND PROCEDURAL HISTORY On Baxters direct appeal, we set out the facts most favorable to the conviction: On November 11, 2003, Baxter was living with his girlfriend, Kimberly Bray, in Indianapolis. Baxter was not employed, and he and Bray spent most of their days shoplifting so that they could sell merchandise to fund their crack cocaine habits. Sometime on November 11, Baxter informed Michael Rainey, one of the individuals who was staying with them, that he was expecting a telephone call. At some point, Marcus Williams--an acquaintance of Bray and Baxters--telephoned the residence, stating that he needed some gasoline for his vehicle. Baxters nephew, Taryll Miller, waited for Baxter and Bray in his car, so they could drive out to Claude and Annies Restaurant and Bar, where Williams was playing pool, in order to give him a can of gasoline. Williams and Miller were acquaintances, and while the two did some "business" together, Miller grew to dislike Williams to the point that he wanted to see him dead. Baxter disliked Williams as well. Miller drove the three to the restaurant, and after noticing Williams and his girlfriend-- Carlette Moody--inside, Miller parked the vehicle. Baxter left the car, and Miller then ordered Bray to drive to a nearby vacant lot. At some point, Williams and Moody left the restaurant, and they noticed Baxter walking toward them with a gas can. Baxter then entered the backseat of their vehicle, and they drove to the lot and parked near the other vehicle where Bray and Miller were waiting. Shortly thereafter, Baxter fired three gunshots and fled to the car, where Miller and Bray were waiting. Baxter jumped into the front passenger seat of Millers car, told Bray to "go" and stated "I shot him once and her twice." The three then drove back to Brays, and Baxter ordered her to dispose of his clothing. Bray complied and placed the clothes in a dumpster at a nearby liquor store. When the police found Williams and Moody at the scene of the shooting, Moody told emergency personnel that Baxter had shot them. The following morning, Baxter was arrested. In the end, Williams died from a gunshot wound to the head, and Moody sustained two gunshot wounds to her head but survived. Baxter v. State, No. 49A02-0504-CR-296, slip op. at 2-3 (Ind. Ct. App. Mar. 15, 2006) 2

(internal citations omitted), trans. denied. The State charged Baxter with murder, a felony;1 attempted murder, a Class A felony;2 and carrying a handgun without a license, a Class A misdemeanor.3 Before the presentation of evidence, the court gave the jury the following preliminary instruction: INSTRUCTION NO. 7 The crime of Attempt Murder is defined as follows: "A person attempts to commit a murder when, acting with the conscious purpose of killing another person, he engages in conduct that constitutes a substantial step toward killing that person." To convict the defendant, William Baxter, of Attempt Murder, the State must prove each of the following elements: That the defendant, William Baxter, on or about November 11, 2003, 1. did attempt to commit Murder, 2. which is to intentionally kill another human being, that is: Carlette Moody, by engaging in conduct, that is: firing a deadly weapon, that is: a handgun, at and against the person of Carlette Moody, 3. with the specific intent to kill Carlette Moody, which conduct constituted a substantial step toward the commission of said crime of Murder. If the State fails to prove each of these elements beyond a reasonable doubt, you must find the Defendant, William Baxter, not guilty of Attempt Murder, a Class A Felony as charged in Count II of the Information. If the State does prove each of these elements beyond a reasonable doubt, you should find the Defendant, William Baxter, guilty of Attempt Murder, a Class A Felony as charged in Count II of the Information.

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