ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
J. Richard Kiefer Steve Carter
K. Michael Gaerte Attorney General of Indiana
Kiefer & McGoff
Indianapolis, Indiana Nandita G. Shepherd
Deputy Attorney General
INDIANA SUPREME COURT
ROGER BOESCH )
v. ) 45S00-9909-CR-467
STATE OF INDIANA )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Richard W. Maroc, Judge
Cause No. 45G01-9807-CF-00144
Consolidated Direct Appeal and Appeal from Denial of Post-Conviction Relief
November 25, 2002
The defendant, Roger Boesch, was convicted of the 1998 murder of his wife,
Saundra Boesch, and was sentenced to a term of fifty-two years. He
initiated a direct appeal in this Court and requested remand to the trial
court in order to pursue post-conviction relief pursuant to Davis v. State, 267
Ind. 152, 368 N.E.2d 1149 (1977). We granted the defendant's motion and
suspended consideration of his direct appeal pending the post-conviction determination. Upon the
denial of post-conviction relief, the defendant now presents his consolidated appeal from the
judgments of both the initial trial court and the post-conviction court, asserting that
(1) the inclusion of sudden heat as an element of voluntary manslaughter in
one jury instruction constitutes fundamental error; and (2) he received ineffective assistance of
his trial counsel. We affirm the trial court and the post-conviction court.
Voluntary Manslaughter Instruction
In his direct appeal, the defendant claims that the trial court committed fundamental
error by instructing the jury in his murder trial that before it could
find the defendant guilty of the lesser-included offense of voluntary manslaughter, the State
must have proved that the defendant "did the killing while acting under sudden
heat." Trial Record at 115.
The defendant argues that by so instructing the jury, the court effectively eliminated
his chance of obtaining a voluntary manslaughter conviction, as the State, pursuing a
murder conviction, was clearly unmotivated to prove sudden heat.
It is well settled in Indiana that sudden heat is not an element
of voluntary manslaughter.
Isom v. State, 651 N.E.2d 1151, 1152 (Ind. 1995);
Bane v. State, 587 N.E.2d 97, 100 (Ind. 1992); Palmer v. State, 573
N.E.2d 880 (Ind. 1991); Wilcoxen v. State, 705 N.E.2d 198, 203 (Ind. Ct.
App. 1999). Rather, once a defendant presents evidence of sudden heat, the
State bears the burden of disproving its existence beyond a reasonable doubt.
Ind. Code § 35-42-1-3(b); Bane, 587 N.E.2d at 100. An instruction assigning
to the State the burden of affirmatively proving sudden heat is erroneous as
a matter of law, and when properly objected to at trial may require
a new trial on the murder charge. Id. at 100-01.
The defendant concedes that his trial counsel neither objected to the erroneous instruction
nor tendered a proper instruction. As a result, the defendant may not
present this claim on appeal. Ind. Trial Rule 51(C); Mitchell v. State,
726 N.E.2d 1228, 1235 (Ind. 2000). To avoid procedural default, the defendant
argues that because the issue of sudden heat was at the heart of
his defense, the court committed "fundamental error" by improperly instructing the jury that
sudden heat is an element of voluntary manslaughter. The "fundamental error" rule
is extremely narrow, and applies only when the error constitutes a blatant violation
of basic principles, the harm or potential for harm is substantial, and the
resulting error denies the defendant fundamental due process. Benson v. State, 762
N.E.2d 748, 755 (Ind. 2002) (citing Mitchell, 726 N.E.2d at 1236); see also
Ford v. State, 704 N.E.2d 457, 461 (Ind. 1998).
When determining whether a defendant suffered a due process violation based on an
incorrect jury instruction, we look not to the erroneous instruction in isolation, but
in the context of all relevant information given to the jury, including closing
argument, Isom, 651 N.E.2d at 1153, and other instructions, id.; Bane, 587 N.E.2d
at 101. There is no resulting due process violation where all such
information, considered as a whole, does not mislead the jury as to a
correct understanding of the law. Isom, 651 N.E.2d at 1153. For
example, in Bane, the jury in a murder trial was instructed in a
manner similar to the present case. At one point the instructions stated
that sudden heat is an element of voluntary manslaughter and that the State
bore the burden of its proof. Bane, 587 N.E.2d at 100.
However, at another point the instructions informed the jury that sudden heat is
a mitigating factor that reduces what would otherwise be murder to manslaughter.
Id. This Court found that the instructions were inartfully drafted and technically
erroneous, but did not constituted fundamental error. Id. at 101. Similarly,
in Isom, 651 N.E.2d 1151, although the jury was incorrectly instructed that sudden
heat is an element of voluntary manslaughter, it was also informed that sudden
heat "acts as a mitigator for reducing what would otherwise be murder to
voluntary manslaughter," and was reminded by defense counsel in closing argument that sudden
heat acts as a mitigator. Id. at 1153. This Court concluded
that the challenged sudden heat instruction carried an erroneous suggestion but did not
constitute fundamental error. Id.
Conceding that Isom and Bane are at odds with his position, the defendant
urges us to reconsider our holdings in those cases, or at least to
distinguish them factually from his own. We decline.
It is highly improbable that the jury in this case was misled as
to an accurate legal understanding of sudden heat and its significance. First,
as did the instruction in Bane, the instruction about which the defendant complains
quotes Indiana's voluntary manslaughter statute, which states that "[t]he existence of sudden heat
is a mitigating factor that reduces what otherwise would be murder to voluntary
manslaughter." Trial Record at 115 (quoting Ind. Code § 35-42-1-3). Second,
the instruction that immediately followed stated that "[i]n order to prove the offense
of Murder, if there is some evidence of 'sudden heat,' then the State
bears the burden in its evidence of negating the existence of sudden heat
beyond a reasonable doubt." Trial Record at 116. Finally, the defendant's
attorney emphasized the point in his closing argument to the jury:
The existence of sudden heat is a mitigating factor, a reducing factor, that
reduces what otherwise would be murder to voluntary manslaughter. And the instruction
goes on that the state must, if there is evidence of sudden heat,
the state must prove to you beyond a reasonable doubt the nonexistence of
sudden heat to avoid a voluntary manslaughter conviction if you believe it was
intentionally or knowingly done.
So there is a burden on the state . . . . They
must, in essence, tell you there was no sudden heat, and you have
to believe that beyond a reasonable doubt to find him guilty of murder,
because if sudden heat is there and this court's instructions will tell you,
you have got to find you have got to find voluntary.
Trial Record at 1241-42. Ineffective Assistance of Counsel
We hold that, although erroneous, the challenged single passage did not constitute fundamental
error. Because no objection was made at trial and the error was
not fundamental, the defendant may not assert this argument on appeal.
Having considered the issue presented in the defendant's direct appeal from his conviction,
we now turn to his appeal from the denial of post-conviction relief.
The sole ground raised by the defendant in his petition for post-conviction relief
was ineffective assistance of counsel. P.C.R. Record at 13. Using the
two-part test established by the United States Supreme Court in Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the post-conviction court,
after a full evidentiary hearing, found that (1) there was no evidence that
"the performance of trial counsel fell below the norms of prevailing professional conduct"
and (2) "[t]here is no evidence . . . that trial counsel's handling
of the petitioner's case prejudiced the petitioner." P.C.R. Record at 59.
When reviewing a denial of post-conviction relief, we give no deference to the
post-conviction court's legal conclusions, but to the extent the decision turns on factual
determinations, our review is deferential, and will result in reversal only when the
decision is found to be clearly erroneous. Ind. Trial Rule 52(A); Stevens
v. State, 770 N.E.2d 739, 746 (Ind. 2002). The defendant "must convince
this Court that the evidence as a whole leads unerringly and unmistakably to
a decision opposite that reached by the post-conviction court." Id. at 745.
The defendant supports his claim of ineffective assistance of counsel by arguing that
his trial counsel (1) failed to object to a clearly erroneous jury instruction,
(2) presented inconsistent theories of defense, and (3) failed to conduct an exhaustive
scientific and factual investigation that may have supported an accident defense, thus rendering
his conviction and sentence unreliable.
a. Failure to Object
The defendant first claims that his trial counsel was ineffective because he failed
both to object to the erroneous voluntary manslaughter instruction discussed above and to
tender a proper instruction in its place. He acknowledges that this claim
was not included in his petition seeking post-conviction relief. Indiana Post-Conviction Rule
1(8) requires that all available grounds for relief be raised in a petitioner's
original or properly amended petition. "Issues not raised in the petition may
not be raised for the first time on post-conviction appeal." Allen v.
State, 749 N.E.2d 1158, 1171 (Ind. 2001).
The defendant attempts to overcome this result by arguing that the failure to
specify this claim in the petition for post-conviction relief constitutes fundamental error.
The fundamental error doctrine is not applicable in post-conviction proceedings. Sanders v.
State, 765 N.E.2d 591, 592 (Ind. 2002); Canaan v. State, 683 N.E.2d 227,
235 n.6 (Ind. 1997).
b. Inconsistent Theories of Defense
The defendant next claims that his right to counsel was violated because his
trial counsel contradicted the defendant's trial testimony that he did not intend to
kill his wife. The defendant argues that his lawyer (1) made statements
during his closing argument insinuating that the defendant did intend to kill his
wife, and (2) presented a defense of voluntary manslaughter rather than accident.
The defendant argues that "[t]his inconsistency forced the jury to decide not only
whether to believe the State's version or Boesch's, but also whether they believed
Boesch's or his own lawyer's." Br. of Appellant at 37. The
State responds that the issue of inconsistent theories of defense is waived because
it was not raised in the defendant's petition.
The facts alleged in the petition in support of the defendant's claim of
ineffective assistance of counsel are as follows:
1) trial counsel instructed me to present false testimony over my objections;
2) trial counsel failed to listen to my recitation of events leading
to the death of my wife and to recognize the potential "accident" defense;
3) trial counsel conceded my guilt by admitting in opening statement that
I killed my wife (this was done without my consent); 4) [trial
counsel] insisted upon a defense of "voluntary manslaughter" (i.e. "sudden heat") over my
objections; 5) trial counsel insisted, over my objections, that the only issue
was whether I acted in "sudden heat" and would not even consider my
claim that I did not intend to kill my wife . . .
P.C.R. Record at 13-14. While "inconsistent defenses" is not explicitly asserted in the
petition, we find that the defendant's appellate claims on this point are within
the issues raised in the his petition. c. Failure to Investigate
The defendant testified that while swimming in their pool, his wife told him
for the first time that she was having an affair with his brother
and that she wanted a divorce. The defendant admitted that an argument
and physical struggle ensued, during which he grabbed his wife with both hands
and pulled her about as hard as he could into the pool by
her ankle, pushed her under the water at least twice, and grabbed her
around the neck and squeezed. He also testified that they were hollering,
shoving, wrestling, and screaming, and that at some point he realized things had
gotten "out of hand" and that he should not be doing what he
was doing. Trial Record at 1101-10. The defendant stated that he
had never been so mad, Trial Record at 1150, and that he pushed
her under the water because he did not want to hear what she
was saying. Trial Record at 1106.
The defendant contends that he received ineffective assistance when his counsel asserted in
his closing argument that the defendant did, in fact, intend to kill his
wife, saying: "His intention was to punish. His intention was to inflict
pain. His intention was to repay her . . ." Br.
of Appellant at 33 (quoting Trial Record at 1245). This quoted segment
of defense counsel's closing statement, however, is incomplete and misleading in its failure
to disclose material facts. What counsel actually said was: "I don't think
that that was his intention; death. His intention was to inflict pain.
His intention was to repay her for the pain he [sic] just
inflicted on her [sic], but it wasn't an intent to kill which is
something you need to have a murder." Trial Record at 1245-46 (emphasis
added). He repeated this assertion just a few statements later: "He didn't
think he killed her, and it never was his intent to kill her.
. . . He did squeeze her neck, but he did it
in sudden rage." Trial Record at 1251-52.
The jury was instructed that the defendant was charged with murder by "knowingly
or intentionally" killing his wife. Trial Record at 110. The defendant
argues that his trial testimony insisted that "he did not have any intent
to kill Saundra." Br. of Appellant at 33. His testimony does
not dispute, however, that the killing may have occurred "knowingly." A person
acts knowingly if "when he engages in the conduct, he is aware of
a high probability that he is doing so." Ind. Code § 35-41-2-2(b).
The defense counsel's closing statement repeatedly asserted that the defendant did not
intend to kill his wife. Trial Record at 1245-46, 1251-52. But,
despite the claim of no intentional killing, the fact that the defendant had
forcefully choked his wife remained as strong evidence of a knowing killing.
To address this evidence, the defendant's attorney urged the jury to consider the
alternative lesser offenses of reckless homicide, involuntary manslaughter, and voluntary manslaughter, strongly arguing
for the presence of sudden heat. Considered in its totality, counsel's argument
did not contradict his client.
The defendant offers Sherwood v. State, 717 N.E.2d 131 (Ind. 1999) in support
of his argument that discrepancies in defense theories between a defendant and his
or her counsel constitute ineffective assistance. The defendant in that case was
denied his request to proceed pro se, and was instead forced to submit
to a hybrid representation scheme whereby he and an appointed attorney presented conflicting
defenses. This Court there held that forced representation by counsel upon a
defendant who wished to conduct his own defense violated his Sixth Amendment right
to self-representation. Id. at 136. But this issue is not presented
in the present case.
In light of the defendant's testimony, it was neither unreasonable nor inconsistent for
counsel to present a voluntary manslaughter defense as an alternative defense strategy.
We reject the defendant's claims that his trial counsel's closing statement denied or
contradicted his trial testimony that he did not intentionally kill his wife.
This conduct of trial counsel was not deficient.
The defendant finally claims that his trial counsel was ineffective for failing to
properly investigate (1) scientific material that may have supported an accident defense, and
(2) the weaknesses in the testimony of Don Weaver, a critical State witness.
The State claims, and the post-conviction court concluded, that these issues are
waived because they were not raised in the defendant's petition for post-conviction relief.
P.C.R. Record at 59. To the contrary, we find that the
defendant's claim of failure to investigate the accident defense is sufficiently covered by
the allegation in the defendant's petition that, "[t]rial counsel failed to listen to
my recitation of events leading to the death of my wife and to
recognize the potential "accident" defense." P.C.R. Record at 13-14 (emphasis added). This
asserted claim encompasses the defendant's argument that, had his counsel properly investigated the
available scientific material, he would not have dismissed an accident defense in favor
of sudden heat. We decline to find waiver as to this claim.
The defendant has maintained that his wife's death was the result of an
accident. He believes that she probably hit her head when they were
fighting, causing her to pass out and drown after the defendant left the
pool. Defense counsel reviewed photographs and the victim's autopsy reports with a
pathologist and was informed that: the victim did have a gash on the
back of her head, but that it was not the cause of her
death; the victim had petechiae hemorrhages in her eyes indicating strangulation; there was
no water in the victim's lungs, indicating that she did not drown; there
were focal hemorrhages on the victim's neck, or fingerprints left by someone applying
pressure over time, and; the cause of death was asphyxiation (lack of oxygen).
After this discussion with the pathologist, defense counsel advised the defendant that
he did not believe the evidence would support an accident defense.
In the post-conviction proceedings, however, the defendant presented testimony of three physicians, including
the doctor who performed his wife's autopsy, who stated that they believed that
drowning could have been his wife's cause of death, notwithstanding the absence of
water in her lungs. The defendant also quotes a medical treatise indicating
that as many as 10% 20% of all drowning victims may never
inhale water into their lungs. Br. of Appellant at 40. The
defendant argues that:
Because he failed to conduct necessary medical research and failed to seek expert
witness support for an accidental drowning with no water in the lungs, [defense
counsel] assumed incorrectly that Saundra's death could not have been an accident, rejected
his own client's version of the facts and testimony at trial, and agued
to the jury that [the defendant] was guilty of manslaughter.
Br. of Appellant at 42-43.
When deciding a claim of ineffective assistance of counsel for failure to investigate,
we apply a great deal of deference to counsel's judgments. Strickland v.
Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 2066, 80 L.Ed. 674, 695
(1984). In Strickland, the United States Supreme Court observed that:
[S]trategic choices made after thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable; and strategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable professional judgments support the limitation
on investigation. In other words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations unnecessary.
Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066, 80 L.Ed. at 695. Conclusion
We see no evidence that defense counsel's investigation fell below objective standards of
reasonableness. He testified at the post-conviction hearing that he did not contest
the defendant's theory of his wife's death when relayed to him by the
defendant. It was only after counsel studied the autopsy reports and photographs
and consulted with a pathologist that he determined an accidental death defense appeared
totally unrealistic within the facts of the case.
Furthermore, the defendant has made no showing that the outcome of his case
would likely have been different had counsel further investigated scientific data regarding "dry
drowning." He admits in his brief that "it is unknown what evidence
existed, but pointed in other directions." Br. of Appellant at 36.
He also admits that only between 10% and 20% of drowning victims do
not inhale water into their lungs, which translates to a 20% chance, at
best, that the victim's cause of death was accidental drowning. When this
low statistical probability is combined with the other medical evidence and the testimony
of the witness who claims to have seen the defendant holding the victim
under the water with his hands around her neck, we are not persuaded
that there is a reasonable probability that the accident defense now urged by
the defendant would have produced a result more favorable to him.
As for the defendant's claim that his attorney failed properly to investigate the
proposed testimony of Don Weaver, a State witness, we agree with the State
that this issue was not raised in the defendant's petition for post-conviction relief.
The defendant concedes this but claims that, because the issue was addressed
in detail at the post-conviction hearing and was the subject of extensive cross
examination, it is not subject to waiver.
The merits of this issue, however, were not tried with the consent of
the State. Asserting waiver, the State repeatedly objected to testimony regarding: deficiencies
in investigation, (P.C.R. Record at 90); failure to develop impeachment material for Don
Weaver, (P.C.R. Record at 169); and any testimony not concerning sudden heat.
(P.C.R. Record at 298). The post-conviction court ruled that it would allow
the witnesses to continue, but would show a continuing objection by the State
and would base its ruling only on those grounds raised in the petition.
P.C.R. Record at 301. Because the issue was not included in
the defendant's petition for post-conviction relief, it may not be raised in this
The defendant has failed to establish that the performance of his trial counsel
fell below the norms of prevailing professional conduct. We decline to find
that he was deprived of his right to counsel.
We affirm the judgment of the trial court and the judgment of the
post-conviction court denying the defendant's petition for post-conviction relief.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
To avoid confusion we will refer to the record on direct appeal
as "Trial Record" and the record from the post-conviction hearing as "P.C.R. Record."