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02/24/88 JAMES BLACKBURN v. STATE INDIANA

Filed: February 24, 1988.

JAMES BLACKBURN, APPELLANT (PETITIONER BELOW)
v.
STATE OF INDIANA, APPELLEE (RESPONDENT BELOW)



Appeal from the Fayette County Circuit Court, The Honorable Daniel Lee Pflum, Judge, Cause No. 6402

Pivarnik, J., Shepard, C.j., DeBruler, Givan, Dickson, JJ., concur.

Author: Pivarnik

PIVARNIK, J.

Petitioner James Blackburn appeals the denial of his Petition for Post Conviction Relief in the Fayette Circuit Court. Blackburn was charged on April 2, 1969 in the Franklin Circuit Court with murder in the first degree. On April 25, 1969 the cause was venued to Fayette County, and on November 7, 1969, following a jury trial, Blackburn was convicted of murder in the second degree. The conviction and sentence were affirmed on direct appeal. Blackburn v. State (1973), 260 Ind. 5, 291 N.E.2d 686, appeal dismissed 412 U.S. 925, 93 S.Ct. 2755, 37 L.Ed.2d 152. Blackburn's Petition for Post-Conviction Relief was filed on June 13, 1984 and, after a period of extended pleadings by both parties, the trial court denied the petition on January 28, 1986. Three issues are presented for our review in this appeal:

1. fundamental error in giving final instruction No. 17;

2. ineffective assistance of counsel; and

3. error in receiving into evidence Blackburn's pretrial statements to the police.

Blackburn also challenges the trial court's finding he was guilty of laches in bringing the post-conviction relief action. Since the State defended on all of the issues, however, and the trial court found against Blackburn on all of the above issues on the merits, the presentation of the laches issue is redundant and we will not consider it.

The facts are as follows:

On Sunday morning, March 30, 1969, Michael Sterwerf, a thirteen year old boy, was hunting with a friend in a wooded area near Metamora in rural Franklin County, Indiana, when they came upon a man (later identified as Blackburn) who threatened them with a rifle. The boys fled to the Sterwerfs' residence where they reported the incident to Michael's parents who began searching for the man. Approximately one hour after the initial encounter with the young boys, Mr. and Mrs. Sterwerf found Blackburn standing beside his car in the woods. Defendant threatened the couple with his rifle, causing them to flee by firing shots into the air in their general direction.

The Sterwerfs then summoned the police. Trooper Carl Wood, of the Indiana State Police, was the first officer to arrive. Accompanied by Mr. Sterwerf, Trooper Wood had completed a brief examination of the area surrounding Appellant's car when other police units arrived. At that time, Blackburn's location was unknown. After a cursory search of Defendant's vehicle, the officers advanced into the woods where a campsite was located. At this time shots were heard in the vicinity of Appellant's car and the officers sought cover and returned the fire which appeared to be coming from the top of a nearby hill.

At this time, Blackburn's probable identity was determined through a license plate check, and an examination of papers and effects in the vehicle. Lt. Charles Short, who had known Blackburn as a juvenile, called out in an attempt to persuade Appellant to stop shooting and surrender. Blackburn then came down the hill, pleading that he not be shot. Only after defendant was in custody was it learned that Trooper Lietzen had been fatally wounded.

Appellant testified that he had gone to the woods, intending to stay for a two-week period, in order to think over his domestic and financial difficulties in solitude. He had at least six rifles in his possession which he had originally planned to sell. After his encounter with the boys and Mr. and Mrs. Sterwerf he moved to the crest of a hill where he constructed an "F" shape barricade. Appellant maintains that his only desire was to be left alone and that his only motive in firing was to drive off the Sterwerfs and the police. He also stated that he fired high in order to avoid hitting ...


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