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Fisher v. State, 810 N.E.2d 674

Facts

In August 1993, Darryl Eugene Fisher was charged with murder after fatally shooting Kizmond Alexander during a confrontation at a diner. The incident occurred when Fisher, after initially refusing to serve the boys at the diner, emerged with a handgun and shot Kizmond in the back. The defense argued that the shooting was accidental or a result of reckless behavior, while the prosecution claimed it was an act of retaliation. At trial, the court denied a jury instruction on the lesser offense of reckless homicide, leading to Fisher's conviction for murder.

In August 1993, Darryl Eugene Fisher was charged with murder arising out of a shooting incident at a Gary restaurant.

Issue

Whether the failure to raise on appeal the trial court's refusal to give a reckless homicide instruction as a lesser-included offense to murder amounts to ineffective assistance of appellate counsel.

The question we address is whether the failure to raise on appeal the trial court's refusal to give a reckless homicide instruction as a lesser-included offense to murder amounts to ineffective assistance of appellate counsel.

Rule

Ineffective assistance of appellate counsel claims are evaluated using the same standard as trial counsel ineffectiveness, requiring a showing of deficiency in performance and resulting prejudice.

We review claims of ineffective assistance of appellate counsel using the same standard applicable to claims of trial counsel ineffectiveness.

Analysis

The court determined that appellate counsel's failure to raise the issue of the refused reckless homicide instruction was deficient because the issue was significant and obvious, and it was clearly stronger than the issues that were raised on direct appeal. The court noted that the law regarding lesser-included offenses was unsettled at the time of Fisher's trial, but the failure to present this claim was not based on any strategic decision by counsel.

However, in our view this fact is not dispositive of whether the lesser-included instruction issue was significant, obvious, and clearly stronger than the issues counsel presented on direct appeal.

Conclusion

The Supreme Court reversed the judgment of the post-conviction court, concluding that appellate counsel's failure to present the claim regarding the lesser-included offense constituted ineffective assistance. The case was remanded for further proceedings consistent with this opinion.

We reverse the judgment of the post-conviction court.

Who won?

Darryl Eugene Fisher prevailed in the case because the Supreme Court found that his appellate counsel had performed deficiently by not raising a significant issue regarding the trial court's refusal to instruct on reckless homicide.

On petition to transfer, the Supreme Court, Rucker, J., held that appellate counsel performed deficiently by failing to raise, on direct appeal from murder conviction, the issue of trial court's refusal to give instruction on lesser offense of reckless homicide.

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