Jermaine Drake v. State of Indiana (mem. dec.)
18A-PC-79
Ind. Ct. App.Aug 22, 2018Background
- On October 2, 2004 Jermaine Drake drove with Jordan Williams and another to meet a buyer for a purportedly stolen TV; Drake approached, demanded the TV, and shot David Masiongale, who later died.
- Witnesses at trial (Scott, Williams, Adams, Trahan) identified Drake as the shooter; Drake was convicted of murder in 2006 and sentenced to 55 years; direct appeal affirmed.
- Drake filed a pro se petition for post-conviction relief in 2008, amended in 2015 and 2017, claiming ineffective assistance of trial counsel on several grounds; the post-conviction court denied relief.
- Alleged deficiencies included counsel’s handling of cross-examination and impeachment of Williams (including a voice-stress exam and testimony that Williams bought a gun from Drake), failure to challenge Scott’s pretrial/photo-array and in-court identifications, and failure to object to Detective Whitesell’s course-of-investigation testimony about how Drake’s name was obtained.
- The post-conviction court found the State had disclosed the voice-stress exam; counsel elicited the failed exam on cross and made strategic choices; other eyewitness identifications and limits on prejudice were central to the court’s denial.
Issues
| Issue | Plaintiff's Argument (Drake) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Counsel failed to adequately cross-examine/impeach Williams about his last-minute plea agreement | Counsel should have introduced charging documents and penalty ranges and emphasized Williams’s motive to lie | Counsel did cross-examine Williams about the deal and bias; jury knew of the deal; no showing that a different approach would change outcome | Denied — no deficient performance shown and no prejudice established |
| Admission and use of Williams’s voice-stress exam (Ex. 19) | Counsel ineffective for not objecting to exhibit’s admission and for stipulating to its admissibility | Counsel did object (discovery ground) and strategically elicited the failed exam on cross to impeach Williams; State disclosed the exhibit | Denied — counsel made a strategic choice, exhibit was disclosed, and decision was reasonable |
| Failure to object to testimony that Williams bought a handgun from Drake | Testimony was improper 404(b)/403 evidence of propensity; counsel should have objected | Defense opened the door by asking Williams about guns at his house; evidence was fair rebuttal | Denied — no reasonable probability objection would have been sustained; no deficiency or prejudice |
| Failure to suppress pretrial photo-array and object to Scott’s in-court ID | Photo array was unduly suggestive; in-court ID lacked independent basis | Multiple witnesses (Adams, Trahan, Williams, Scott) identified Drake; other eyewitness evidence supported ID | Denied — even if counsel erred, Drake failed prejudice prong because of other identifications |
| Failure to object to Detective Whitesell’s testimony about receiving Drake’s name from Quinn’s mother (course-of-investigation hearsay) | Testimony was inadmissible hearsay identifying Drake through a non-eyewitness and counsel should have objected | Whitesell’s testimony explained how investigation proceeded; not indicating Quinn’s mother said Drake was shooter; no allegation of police impropriety | Denied — counsel should have objected but Drake was not prejudiced; no reasonable likelihood outcome would change |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishing two-part ineffective assistance test: deficient performance and prejudice)
- Hollowell v. State, 19 N.E.3d 263 (burden on petitioner in post-conviction relief and standard of review)
- Humphrey v. State, 73 N.E.3d 677 (reciting Strickland standard in Indiana context)
- McCary v. State, 761 N.E.2d 389 (deference to counsel’s strategic decisions)
- Blount v. State, 22 N.E.3d 559 (limits and purpose of course-of-investigation testimony)
- Passwater v. State, 989 N.E.2d 766 (requiring reasonable probability that an objection would have been sustained to show prejudice from failure to object)
- Baer v. State, 942 N.E.2d 80 (can affirm ineffective assistance denial based solely on prejudice prong)