Kevin D. Speer v. State of Indiana (mem. dec.)
79A05-1608-PC-1736
| Ind. Ct. App. | Feb 6, 2017Background
- In Sept. 2011 police stopped a truck leaving David Balser’s home; a drug dog alerted and officers found methamphetamine, paraphernalia, and numerous meth-manufacture materials in the truck and an adjacent black bag; a warrant search yielded more evidence.
- Kevin Speer was charged with conspiracy to manufacture methamphetamine, manufacture, possession, possession of precursors, maintaining a common nuisance, and paraphernalia; jury convicted and he received an aggregate 33.5-year sentence.
- On direct appeal this court vacated the possession-of-precursors conviction (double jeopardy concern) and otherwise affirmed.
- Speer filed a post-conviction relief petition alleging ineffective assistance of trial and appellate counsel on multiple grounds; the post-conviction court denied relief after an evidentiary hearing.
- The Court of Appeals affirmed, finding (1) no prejudice from trial counsel’s alleged failures regarding witness immunity and dropped charges, (2) no meritorious evidentiary objections that would have succeeded, and (3) no double jeopardy violation between possession and maintaining a common nuisance that counsel could have prevailed on.
Issues
| Issue | Plaintiff's Argument (Speer) | Defendant's Argument (State / Post-conviction court) | Held |
|---|---|---|---|
| Trial counsel ineffective for not informing jury that witnesses had use immunity / had charges dropped | Jury should have known Ferguson and Carnahan had use immunity and that charges against Ferguson were reduced, which would diminish their credibility | Jury was already informed witnesses received benefits via plea/probation terms; evidence of guilt was overwhelming so no prejudice | Denied — no prejudice; jury could infer benefits and evidence independent of their testimony was strong |
| Trial counsel ineffective for failing to object to Speer’s remark that police dogs "suck" | Statement was prior-bad-act evidence implying past drug contacts; objection should have been sustained | Statement did not admit any past crime and arguably asserted prior innocence; a 404(b) objection would fail | Denied — not a prior bad act; objection would not succeed |
| Trial counsel ineffective for not objecting to prosecutor’s "methamphetamine subculture" comments and testimony about others | Comments and third-party evidence prejudiced Speer by introducing bad-actor context and irrelevant acts | Evidence about co-conspirators and codefendants was relevant to conspiracy and provenance of materials; counsel’s tactics presumed strategic | Denied — evidence/comments were relevant and not fundamentaly erroneous; no showing of deficient strategy |
| Trial and appellate counsel ineffective for failing to raise double jeopardy between possession and maintaining common nuisance | Convictions for possession and maintaining a common nuisance overlap and violate double jeopardy | Actual evidence supporting each conviction differed (possession tied to coffee filter; nuisance tied to vehicle use, transport, prior use and paraphernalia) | Denied — no reasonable possibility jury used same evidentiary facts for both verdicts; claim lacked merit |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
- Hall v. State, 849 N.E.2d 466 (Ind. 2006) (standard of review for post-conviction court factual findings)
- Richardson v. State, 717 N.E.2d 32 (Ind. 1999) (actual-evidence test for double jeopardy under Indiana Constitution)
- Lee v. State, 892 N.E.2d 1231 (Ind. 2008) (consider charging information, instructions, and counsel argument to determine actual evidence used)
- Ben-Yisrayl v. State, 729 N.E.2d 102 (Ind. 2000) (appellate ineffective-assistance standard mirrors Strickland)