Attempted murder conviction vacated for ineffective counsel

A man’s attempted murder conviction after a Vanderburgh County knife attack will be vacated after a divided Indiana Court of Appeals found his trial counsel erred by failing to object to two jury instructions.

In Edward Ivy v. State of Indiana, 82A04-1711-PC-2506, Jerald Clark and Robert Drake were at Clark’s home watching football when Edward Ivy and Antwain Russell knocked on the door. When Clark let them in, Russell approached Clark from behind and stabbed him multiple times with a knife, telling him to “leave (his) brother alone.”

Drake tried to stand up and intervene, but Ivy pulled out a gun and held it to Drake’s head. Clark managed to escape, and neighbors who saw him running away and bleeding from the neck called 911. Clark was taken to the hospital and twice lost vital signs, but he eventually was revived and survived his injuries.

Ivy was then charged with attempted murder, intimidation and being a habitual offender. He argued he did not act with the requisite culpability to be found guilty of attempted murder as an accomplice, but a jury found him guilty as charged.

The Indiana Court of Appeals originally upheld Ivy’s attempted murder conviction in 2014, so Ivy filed for post-conviction relief, arguing he received ineffective assistance of counsel. The Vanderburgh Superior Court denied the motion, but a majority of a new appellate panel disagreed and reversed in a Wednesday opinion.

Specifically, the appellate panel found Ivy’s trial counsel was ineffective for failing to object to two jury instructions given at trial. As in Specht v. State, 838 N.E.2d 1081, 1089 (Ind. Ct. App. 2005), Judge John Baker said here, Ivy’s counsel should have objected to two that failed to require the jury to find that Ivy “specifically intended that the victim be killed when he knowingly or intentionally aided Russell in the commission of attempted murder.” In contrast, one of the instructions in question required the jury to find Ivy was the principal actor, while the other did not require a finding that he intended Clark to be killed when he “knowingly and intentionally aided” Russell.

“Moreover, we find that there is a reasonable probability that had trial counsel objected to the instructions as given and tendered the appropriate instruction, the results of Ivy’s trial on the attempted murder charge may have been different,” Baker wrote for the majority joined by Judge Elaine Brown. “We therefore reverse the denial of the petition for post-conviction relief, vacate Ivy’s conviction for attempted murder, and remand for further proceedings.”  

But Judge Patricia Riley dissented, writing separately that when read together, the jury instructions “sufficiently apprised the jury of the essential elements necessary to convict Ivy of attempted murder under an accomplice liability theory.”