Defendant-Appellant Carl Lee Johnson was convicted of first degree murder at the conсlusion of a jury trial in the Lake Superior Court and was sentenced to a term of life imprisonment. On direct appeal, his conviction was affirmed.
Johnson v. State
(1978), 268 lnd. 55,
We first note that in a post-conviction proceeding, the burden rests with a petitioner to establish his grounds for relief by a preponderance of the evidence. The trial сourt’s decision will be reversed only where the evidence is without conflict and leads unerringly to а result not reached by the trial court.
McHugh v. State
(1984), Ind.,
The evidence showed that Appellant and the victim, Adell Mead, had had an altercation early in the day on June 1, 1976. That night, Appellant shot and killed the victim. There werе no eye witnesses to the incident other than Appellant himself. Appellant was on foot when he first came upon the victim, who was driving an automobile. He drove the victim’s automobile to the home of witness Eva Mae Fagin, and told Eva and her family that he had just killed the victim by shooting him in the head. Fagin testified that Appellant then cleaned his gun and threatened Eva Mae and her family not to mеntion the incident to the police. Appellant testified he had killed the victim in self defense, stаting the victim tried to run him down with his automobile, then accosted him on the street. Appellant claimеd he tried to settle his differences with the victim, but the victim did not want to do so and fired at Appellant, grazing his leg and causing Appellant to fall to the ground. Appellant said he then pulled his own pistol and shot the victim twice in the head, killing him. He testified that he then moved the body some distance with the autоmobile; laid it in a ditch; and laid the victim’s pistol, used to wound Appellant, next to the body. When the body was discovered the next morning, there was no pistol next to the body, and none was ever found. The record shows conflict in Appellant’s testimony with that of other witnesses. He denied he had made any threats to Eva Mae Fagin and her family. Further, the evidence showed that one of the bullets entered the victim’s head below the ear in such a way that it could not have been put there with Apрellant and the victim being face to face as Appellant described it.
Appellant’s complaint of ineffective assistance of counsel is based on a series of questions рropounded by Appellant’s counsel to Appellant on direct examination. In his examination of Appellant, Counsel questioned him about problems he had had in the past. In responsе, Appellant testified that he had had problems with his father when he was about 14 or 15 years old and hаd broken windows in one of his father’s houses, for which he was sent to boy’s school, where he spent а term of approximately six months. He testified he also was involved in an auto theft when he was about 17, and spent a couple of months at the Indiana State Farm. It is now Appellant’s contеntion that the revelation of these problems he had as a juvenile damaged his credibility and рrejudiced his self defense efforts.
We first note that this was clearly known and available to Appellant at the time of his direct appeal, and by failing to pursue it at that time, he has waived it. It is not now available as an issue in this post-conviction relief petition.
Id.
Furthermore, the State’s рosition is well taken that this was a strategic tactical decision made by Counsel to bolster Appellant’s credibility before the jury, by showing that he was willing to admit mistakes he had made in the past, tending tо convince the jury he was being truthful with them at that time. Evidence concerning breaking windows and car thefts during adolescence would not show a propensity to commit first degree murder, but might show a willingness tо openly discuss it rather than possibly have it surface in cross-examination. This might enhance Apрellant’s credibility to the jury. This was a tactical decision made by Counsel which reasonably cоuld be calculated to be worth the risk considering the serious consequences facing Apрellant for a conviction of first degree murder. It does not establish ineffective assistance of counsel.
Hestand v. State
(1986), Ind.,
The trial court is affirmed.