Weissmann, J.
Tyre Bradbury claims his defense attorneys eased the State’s burden of convicting him of murder by stipulating to a disputed element of the crime. Moreover, Bradbury’s counsel failed to seek instructions on alternative offenses with lesser sentences. Finding these shortcomings constituted ineffective assistance of counsel, we conclude the post-conviction court erroneously denied Bradbury’s request to vacate his convictions. We reverse and remand for further proceedings.
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Bradbury raises several claims on appeal, but we find two related issues dispositive: whether trial counsel was ineffective in stipulating as to Griffin’s murder conviction and in failing to request a jury instruction on a lesser-included offense.
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To convict Bradbury of murder as an accomplice, the State was required to prove beyond a reasonable doubt that Bradbury, acting with the intent to kill his rival, L.B., knowingly aided, induced, or caused Griffin to commit the crime of murdering toddler J.S. Direct Appeal Appellant’s App. Vol. II p. 159.1 By stipulating to Griffin’s murder conviction, trial counsel conceded a major element of the State’s case: that Griffin was acting with the requisite intent for murder when the killing occurred. Brown v. State, 770 N.E.2d 275, 281 (Ind. 2002) (holding that “conviction of an accomplice requires sufficient proof of the underlying crime”).
Trial counsel specifically testified that, absent the stipulation, the State would have had difficulty proving Griffin’s requisite intent and that Griffin’s murder conviction likely would have been inadmissible. PCR Tr. Vol. IV p. 20. Counsel indicated that he entered into the stipulation because he believed the jury was less likely to convict Bradbury if it knew “justice had been done to the actual shooter.” Id. The dissent finds counsel engaged in a proper strategy because acknowledging Griffin committed murder demonstrated that the toddler victim’s death would not go unpunished. This is problematic for two reasons. First, counsel admitted at the PCR hearing that acknowledging Griffin’s intent was not a trial strategy. Moreover, counsel specifically raised the issue of Griffin’s intent in a pretrial motion to dismiss, during pretrial hearings, in opening argument, during discussions of instructions, in his motion for a directed verdict, and during closing argument.
We agree with Bradbury that Griffin’s intent was as central to Bradbury’s prosecution as it was to Griffin’s. Griffin claimed both at trial and on appeal that the State did not prove his intent to kill…The primary issue in both the Griffin and Bradbury prosecutions was whether Griffin intended to kill his rival, L.B., or just frighten L.B. by recklessly firing in his general direction when the stray bullet from his gun struck toddler J.S. Bradbury’s jury was not bound by the verdict of Griffin’s jury. Yet, informing Bradbury’s jury of that verdict sent the opposite message: another jury had found beyond a reasonable doubt Griffin fired with the intent to kill, so Bradbury’s jury must follow suit.
Trial counsel’s stipulation to elements of the offense which he thought the State would have had difficulty proving cannot be deemed reasonable. Moreover, the stipulation wholly undercut trial counsel’s litigation strategy of establishing Griffin did not act with specific intent to kill.
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Bradbury also claims his attorneys were ineffective for failing to seek lesser alternatives to a murder conviction. According to Bradbury, he would have been entitled to a jury instruction on reckless homicide as an accomplice to Griffin if his counsel had sought it. See Brown, 770 N.E.2d at 280-81 (holding that defendant charged with being an accomplice to murder was entitled to jury instruction on reckless homicide where there was “a serious evidentiary dispute” about the culpability of the principal actor).
Counsel did not tender any lesser included offense instructions because he thought the evidence at trial did not support them. However, trial counsel indicated that if such evidence existed, he would have proposed such an instruction and that any failure to do so was error. He specifically testified the decision was not strategic.
But for counsel’s stipulation as to Griffin’s murder conviction, a serious evidentiary dispute about Bradbury’s culpability would have existed. The Record showed Griffin and Bradbury came to the park prepared to face their adversaries. When Bradbury saw Griffin fire in the rivals’ general direction, Bradbury yelled for him to stop. As the dissent correctly notes, one witness testified Griffin aimed the gun at L.B. Based on this conflicting evidence from trial, a reasonable juror could have concluded Griffin did not intend to kill his rival, L.B.; instead, Griffin was trying to frighten L.B. by recklessly firing the gun in his general direction. The spray of gunfire killed the toddler, who, by all counts, was an unintended victim. Under such circumstances, Bradbury could have been convicted as an accomplice to reckless homicide, a lesser offense than murder. Counsel’s stipulation that Griffin was convicted of murder effectively foreclosed that defense.
The postconviction court concluded Bradbury’s attorneys were not ineffective in failing to request a jury instruction on lesser included offenses because the decision was strategic. We find the evidence does not support this conclusion. Bradbury’s counsel specifically testified that he normally seeks as many lesser included offense instructions as the evidence will support, particularly in murder cases. Counsel also made clear that he would have tendered a lesser included offense instruction if the evidence against Bradbury supported it, and any failure to do so in the presence of such evidence was counsel’s error. The evidence does not support the post-conviction court’s finding that the decision to omit lesser-included offense instructions was strategic.
Based on the record, we find the performance of Bradbury’s attorneys was deficient with respect to the stipulation and omission of lesser included offense instructions and that but for this deficient performance, there was a reasonable probability that the result of the proceeding would have been different. See Grinstead, 845 N.E.2d at 1031. Therefore, the postconviction court erred by denying Bradbury’s petition for post-conviction relief. Even if these errors were the product of strategic decisions, such egregious errors may be grounds for reversal in a post-conviction action.
The judgment of the postconviction court is reversed and this case is remanded for further proceedings.
Bailey, J., concurs.
Vaidik, J., dissents with a separate opinion.
Vaidik, J., dissenting.
I respectfully dissent from the majority’s conclusion Bradbury received ineffective assistance of trial counsel. Because the post-conviction-court judge, who also presided over the jury trial, correctly concluded Bradbury’s counsel were not ineffective, I would affirm.
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The majority finds counsel’s decision to stipulate to Griffin’s murder conviction was not reasonable because it “undercut [their] litigation strategy of establishing Griffin did not act with specific intent to kill.” Slip op. at 5. My review of the record does not lead me to the same conclusion, although I admit the record can be read as the majority reads it. Charles seemingly contradicted himself at the post-conviction hearing. He said, as the majority indicates, that absent the stipulation, it “would have been very hard for [the State]” to establish Griffin had been convicted of murder. P-C Tr. Vol. IV p. 20. Further, Charles testified he thought he had argued Griffin’s intent at trial, and indeed he argued very limitedly Griffin’s intent during closing. 4 However, Charles later said “it was not [his] belief that [he] was going to be successful in arguing the intent of [Griffin].” Id. at 22. And Brendan testified they were “hoping” to challenge Griffin’s intent with evidence the child may have been killed with “an alternative [bullet] trajectory . . . that could have taken . . . a very high arch in the air,” but that theory “didn’t really come together after the testimony that the shooter leveled the gun at the . . . intended victim.” Id. at 59-60. In my opinion, the strategy of counsel was to zero in on the State’s failure to prove Bradbury’s intent.
Even assuming counsel’s strategy was not reasonable, Bradbury’s claim still fails. He must prove there is a reasonable probability the result of his trial would have been different…The final eyewitness claimed to have heard but not seen the shooting. As Brandon testified at the post-conviction hearing, the evidence was not really there to believably contest Griffin’s intent. After reviewing this record, that seems right to me. Bradbury has failed to prove there is a reasonable probability arguing Griffin’s intent would have made a difference in the verdict.
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As to the issue of failing to request a jury instruction on the lesser-included offense of reckless homicide, Bradbury’s claim fails as well. Bradbury has not shown the verdict would have been any different had Griffin’s intent been at issue.
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Reasonable minds differ. And they certainly have here on the issues of whether counsel’s decisions were strategic and whether there is a reasonable probability the result of the trial would have been different. Because I believe this to be a reasonable difference of opinion, I cannot say the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the postconviction court. I would defer to the judgment of the post-conviction-court judge, who also presided over Bradbury’s jury trial, and affirm on these and the other issues raised by Bradbury.