Smith v. State

trial counsel effectiveness merely impeaching. question Johnson v. State litigated had been appeal Palm- direct 1311. and pro- post-conviction first decided presence well known the time and er’s Court, to this appeal in direct ceeding and the conflicts con- this case was tried and i.e., raised, it was again be not it could testimony were cerning her statements and is erroneous decision This judicata. res is in raised in PCR 1. Her statement here legal the correct apply not it does such conflict with much direct evidence rule. set standard not be from other witnesses that could circumstances, is a claim In these “proba- considered to be so creditable one, properly dismiss in order to not a new bly produce a different result.” claim, must rule the court repeated is affirmed. The trial court petition post-con- in the first such claim SHEPARD, C.J., and GIVAN and “inadequately not relief was viction DICKSON, JJ., concur. making approach The rational raised.” DeBRULER, J., separate dissents with place would be of decision type this justify the petitioner to upon the burden DeBRULER, Justice, dissenting. hear and to evidence repetition of the claim question. argument of counsel Appellant did not raise the claim in his stay the judgment, reverse this I would appeal direct that his trial defense counsel for new and remand appellant, execution provided ineffective assistance. post-conviction of this second consideration appellant against did make that claim light dictated standards petition counsel and his counsel his direct by 8. P.C.Rule § post-conviction in his petition, first citing numerous errors and omis-

sions them. The claim litigated adversely appellant

decided the trial court, SMITH, Appellant, and this decision was affirmed after Charles full consideration this Court. counsel, Indiana, Appellee. STATE of by new Thereafter, represented post-conviction second filed No. 02S00-8805-PC-489. legal which, in claim making the petition, Supreme Court of Indiana. his first repetition effect, amounts Dec. against claim Opinion on Petition for Rehearing appeal, but for his and counsel March alleged errors and additional new adds by them. omissions per- or not should be

Whether relitigate

mitted to issue his second governed by P.C. pertinent part

Rule 8. In that section

provides: grounds peti- All for relief available ato

tioner under this rule must be raised in ground finally

his original petition. Any

adjudicated on the merits ... not be petition, subsequent un- basis ground

less the court finds a for relief

asserted which for sufficient reason was inadequately raised asserted or original petition. petition, Judge Com- denying this second calling into

er ruled that since claim

818 Carpenter, K. Defender of Susan Public Indiana, Harper, Teresa D. Rhonda R. Torrent,

Long-Sharp, Deputy R. Linda Defenders, Indianapolis, appel- Public lant. for Pearson, Indiana, Linley Atty. E. Gen. Stevenson, Gen., Joseph Deputy Atty. N. Indianapolis, appellee. GIVAN, Justice. This is an post- the denial of conviction relief. A jury trifurcated

proceeding held in 1983 resulted in the appellant conviction of of Murder and Felo- ny Murder, recommendation to im- pose the penalty, death finding habitual offender status. The trial court correctly merged convictions, entered judgment of conviction Murder, sentenced to death. We affirmed the trial court on appeal. Smith v. Appel- lant subsequently filed his post- relief, which was heard in the trial court and denied. Appellant contends court erred in finding he was not denied effective assistance of counsel. We note appellant’s burden at the outset: “To succeed on a claim of ineffective- counsel, ness of prove must representation that counsel’s an fell below objective standard of reasonableness prevailing professional under norms. prove also must that counsel’s failure to prejudicial function was so deprive him of a fair trial. A fair trial is denied when the conviction or sentence resulted from a breakdown the adver- process sarial that rendered the result unreliable. 466 Washington, Strickland v. U.S. 104 S.Ct. (1984). burden, To meet by strong lant must overcome and con- occurred, held, the crime that while presumption vincing evidence a in Port potential lived witnesses prepared and executed has employed February Wayne. Terry effectively. client’s approximately until waited 1983 but trial, oc- the months before three revolves of counsel Ineffectiveness attempt to September to curred in of each case. particular facts around the witnesses. defense locate and interview speculate not about what will This Court interviewed were ever No State’s witnesses advantageous most may been the counsel. deposed by appellant’s or or inex- strategy, bad tactics and isolated necessarily to not amount perience does was his theory of defense Appellant’s v. State assistance. Mato ineffective Pool Hall at Eley’s had at he been alibi that the time of Nonetheless, Ind., (1985), 478 Lee, crime, Eggie that the not sat- representation does perfunctory crime, was participants of one lying Eley, the the Sixth Amend- isfy the mandates of John family members. protect (1975), 268 Ind. Magley ment. 618, owner, not contact- pool hall was v. State 335 N.E.2d 811.” Williams trial day before until the ed was not listed counsel Ind., (1987), 1266-67. N.E.2d pretrial alibi appellant’s Eley’s objected The State at notice. testimony appeal, appellant must show prevail on To appellant’s of corroboration unerringly clearly and that the evidence alibi, summarily exclud- and the he to a conclusion that satisfied leads of the alibi stat- it ed ute, due violation Id. quoted above. standard Had alibi 35-36-4-1. given avail that The State contends constituted, exclusion properly notice been appel ability appeal, of claim on direct error. have been Eley’s testimony would oper time failure to raise it that lant’s Ind., (1986), 491 N.E.2d v. State Wiseheart issue, citing John as waiver ates suggest State could did 985. Counsel Ind., (1986), 502 N.E.2d 90. son v. State explicitly Eley, he did not interview post-convic hold a opinion that did While or make an offer request a continuance trial counsel to claim of ineffective tion preserved no was thus error prove; by failure to raise waived have been review. authority its cited that appeal, (1982), Ind., Phillips proposition, v. State Appellant maintains the prejudice result- 441 N.E.2d involved ing from the of Eley’s testimony exclusion subsequent guilty plea and dealt action was “devastating” to his defense. How- itself no Johnson waiver issues. ever, in the any testimony absence of or of the ineffec on to reach the merits went tive counsel of that statement Eley introduced at the post- claim, finding abridgment no hearing, find we cannot the ex- right petitioner’s Sixth Amendment testimony cluded would not have been v. State Similarly, counsel. Brewer merely cumulative to that of the five alibi denied, (1986), Ind., 496 N.E.2d cert. testify witnesses who did ap- at trial that 480 U.S. 780, S.Ct. pellant frequently Eley’s visited after 5:00 although we held that ineffective as p.m., but were not he sure was there on the on di of counsel had been raised sistance rect evening any prejudice crime. Thus appeal, particular argument resulting here has not been shown to be at that time and thus not advanced great enough, alone, standing satisfy waived. was prong of second test. Strickland See bar, In the case Marsillett v. N.E.2d to reach the merits of 699. court chose denying petition, making lant’s claim cases, In most trial errors which do not regarding allegation findings no the State’s justify reversal taken separately when do only thus left on of waiver. We are review not attain stature when reversible taken ruling on the with the trial court’s merits. together. Stonebraker v. State Young v. State Ind., 505 N.E.2d In an ineffective as- context, however, sistance of counsel while claim, alleged support each recites error omission be re- allegedly separately viewed performance substandard under the substandard several instances Strickland, prong He performance of his trial counsel. instruction an alibi absence unreliable appel- appellant, to him than did and that guilt determination jury’s the going get the murder for that lant was reason; to to purported given instructions say Lee on to that Briddie went have could all-inclusive; jury thus be nevertheless, gun, had the Briddie was any mention the absence inferred family. Counsel told Tinker that Lee’s that the charge in their of alibi considered significance. inadmissible, hearsay, statement was and never thus of no to be questioned Tinker about it at However, witness, key as the State’s trial; clearly testify Lee was to A available defendant is entitled to an in any prior thus missible under the rule statements were ad- any struction on defense which has some in in established Pat- foundation the evidence. Thomas v. (1975), (1987),Ind., terson v. State 268 Ind. 510 N.E.2d 651. Counsel here should have tendered an instruction on alibi defense. none of the fore- Trial counsel utilized ineffective counsel was argues attempt to going specific information to and conduct prepare failing properly in impeachment prior impeach testimony with incon- Lee’s witness, key of the State’s State, however, sistent statements. prior access to had Eggie Lee. Counsel an at- presumably anticipation of such as well police Lee to given by statements questioned on direct examina- tempt, Lee reports, but never investigative as other interviewed relatively in- reconcile some tion so as to nocuous conflicts given prior trial. Lee’s him before statements the five in a far testimony portrayed concerning, e.g., to trial prior any of his light than more brutal any in the crime denial of involvement regard, and statements, in this and was initially questioned by police. On when them. others, with inconsistent Lee, ap- cross-examination of counsel for pellant already rehashed the conflicts post-conviction at the Evidence submitted State, brought by pressed out and then tes- in Lee’s inconsistencies hearing shows with, you sure Lee “How can we be [that gun and when timony as to how so telling are the truth You’ve lied now]. it was acquired. He had stated replied, many To Lee times?” However, time. at the possession lant’s “Well, saying that I told polygraph I took a Johnson, in the guilty participant Briddie another ques- the truth.” Counsel then continued tioning crime, hearing on his at the testified mistrial, Lee, making no motion for (later rescinded) prior six months plea strike, jury to dis- or to admonish the handgun used to appellant’s trial that the regard polygraph remark. The State by Eg- kill Zink had been obtained Carmen Lee’s later underscored the reference to incident a few gie purse-snatching Lee in a polygraph in its final and rebuttal both prior the murder and had re- weeks mained in Lee’s arguments concluding guilt phase of until handed to possession the trial. parking Elegant Farmer foregoing was lot. none of the Because of their inherent unrelia by impeach Lee’s used at trial him counsel to bility of un combined with their likelihood furnished although the State had decision, influencing duly jury’s a referenc copy of Johnson’s statement with a polygraph es witnesses or counsel to before trial. test results are inadmissible absent waiver Eggie Lee’s parties. also stipulation Pavone v. Briddie Johnson at trial introduced 273 Ind. 402 N.E.2d 976. State Motions in limine are brother-in-law. the Evans, jail a fellow re testimony Wayne appropriate Johnson, effect that Evans a spect inmate of to such references. Id. Where testified at credibility, phase. it is As question hinges hearing, unpreparedness mis- deny a motion reversible error trial “because, frankly, quite poly- reference to came about damaging after complete shock came jury verdict Baker v. State graph results. jury verdict thought that Here, appellant’s me. I had 506 N.E.2d 817. opposite of what just re- polygraph Lee’s would access move in his failure to it was.” sults limine to exclude to ence, thereto, or any references A decision not to defense counsel refer- further prevent present at trial move evidence can be deemed reasonable stan- least, clearly falls below only “predicated proper if it is on a investi counsel. reasonably competent gation dard of fact, defense.” Thomas v. form of 546, 554, he invited the answer Ind. Nevertheless, question. court failed to find this preparation lack of that the counsel knew Appellant’s trial in mitigation of evidence inef to constitute Lee’s heavily Eggie rely State would fective assistance. court did observe post- at the testimony; counsel testified “there nowas evidence to establish a statu goal at trial hearing that his conviction thus was tory mitigating factor.” decimate” Lee’s completely “to evi- of the State’s testimony. At the close However, statute, Ind.Code court to strike dence, moved the counsel 35-50-2-9(c), at the specified § time of trial entirety “by reason its testimony in Lee’s six might factors which be considered in I here from a seminar notes I have of some mitigation, and in subsection 7 allowed for by the pressed When recently attended.” consideration “[a]ny of other circumstances authority, be- counsel some court to state appropriate for consideration.” To avoid “rule” tacit admission gan explaining the capricious imposition of penal the ultimate cor- the court exception). When (hearsay ty, under federal jurispru constitutional observed, any “That doesn’t rectly dence aggravating factors must be circum here,” promised re- applicability scribed so as to narrow the class of offend authority provide case cita- and search tion the ers eligible for the death penalty. Gregg v. day, denied following and the court Georgia 153, U.S. 96 S.Ct. the motion strike. 49 L.Ed.2d 859. following it the renewed authority, moved any day, absent still “ limits State’s Constitution a ‘[T]he acquittal of “for a directed verdict as well ability to narrow a sentencer’s discretion might assuming the court on the basis might to consider relevant evidence that strike earlier to my motion have erred Mr. Lee’s impose it to the death cause decline This frivolous testimony_” (Empha- sentence.’ sis in [Citation omitted.] testimony damaging strike attempt to helps illustrate that such Indeed, original.) precisely it is preparation the lack of direct- punishment should be impeach Lee’s or undertaken contradict ly personal culpability related to the of falling testimony representation constitutes al- jury defendant that the must be reasonably prevailing counsel. norm below miti- give lowed to consider and effect to competent gating a evidence relevant to defendant’s verdict, or or character of the risk of an full gates against record the circumstances guilty its returned jury After day creating Rather than following offense. reconvened the court unguided response, The State emotional of the phase penalty of miti- upon the consideration evidence that based penalty requested the death inten- the death is essen- of the factor aggravating statutory robbing jury give tial if the is to a ‘reasoned of course killing in the tional response to the defendant’s back- no additional moral ground, presented The State victim. character, evi- and crime.’ incorporate the [Citations moved evidence ‘reliability motion In order ensure guilt phase. omitted.] in dence is the intro- the determination that death Appellant’s granted. specific in a appropriate punishment factors. mitigating of no evidence duced case,’ omitted,] the must be as served [citation Eggie Lee’s While any intentional-killing give able to consider and effect State’s evidence defen- mitigating relevant evidence omission counsel’s aggravator, character, background, cir- dant’s or the resulted strategy but of a matter was not Ly- Penry v. for the cumstances of crime.” preparation complete lack from a -, -, 492 U.S. reversal naugh court’s the lower affirmed Blake’s 256, 284. 106 L.Ed.2d S.Ct. death sentence. (1982),455 Eddings similarly Oklahoma We See also U.S. find that appellant’s 869, 71 L.Ed.2d 1. counsel’s prepare S.Ct. failure to for the penalty phase in the case at bar undermines our requires the finder of fact to Our statute confidence in appellant’s death sentence any mitigating “that circum- determine such that trial counsel’s ineffective assist outweighed by exist are stances that ance at the penalty phase alone warrants aggravating circumstance circumstanc- reversal of appellant’s death sentence. es,” 35-50-2-9(e), (g), before Moreover, compilation counsel’s of errors of death. In the arriving at a sentence guilt phase as set forth ren above any mitigating cir- absence of evidence dered appellant’s defense so anemic that cumstances, discussed above our confidence in the guilty verdict itself is virtually anything include favorable to undermined so as to require reversal of accused, or of evidence to rebut the exist- appellant’s conviction as well. factors, charged aggravating ence of the foregone death sentence is conclusion. ruling court is reversed. This cause is those remanded parallel for a in the case bar The facts new trial. Cir.1985),758 F.2d (11th Kemp in Blake v. 998, 106 S.Ct. denied, 474 U.S. 523, cert. SHEPARD, C.J., DeBRULER, PI- petitioner’s where the certain DICKSON, VARNIK and JJ., concur. obtaining a was so trial counsel verdict of that he ON PETITION FOR REHEARING insanity guilty by reason GIVAN, investigate totally failed Justice. phase sentencing for the prepare Appellant was convicted of Murder and wit Noting that character murder Felony Murder. The jury recommended at his Blake habeas for testified nesses corpus the death penalty and additionally found been available hearing thus had him to be a habitual offender. The trial them, sought the review had trial court sentenced appellant to death. No “might such evidence concluded ing court sentence was pronounced on the habitual jury that have demonstrated offender status. We affirmed judg- reprehensible totally was not the petitioner person ment of the trial upon court direct appeal. him to determined they apparently Smith v. Ind., 475 N.E.2d provided they would have Certainly be. bad to the evidence of counterweight some character which was Appellant subsequently filed in received.” fact for relief, which was denied case, instant with the at 535. So by the trial Upon court. testi gave narrative nine witnesses that denial, we found that original his trial re hearing in mony at counsel had rendered him ineffective assist- positive character appellant’s gard to ance. Accordingly, we vacated his death helpfulness, traits, including sincerity, sentence, reversed his conviction and re- un kindliness, general respectfulness, and manded for a new trial. Smith v. State argu phase selfishness, his yet in (1989), Ind., 547 N.E.2d 817. Both appel- prosecutor was able ment to lant and the State have petitions filed mitigating circum state, are no “There rehearing. mitigating no stances, There are period. petition, we its the State contends in evidence.” circumstances finding erred that coun- on to find that court went Blake performance sel’s was so deficient as to essentially had no defense Blake received our confidence in out- undermine come. The State the trial’s penalty phase, and all in the that merely reargues the mat- unpreparedness unconstitu- trial counsel’s original covered in our ters degree to the same tionally prejudiced him petition is denied. State’s permitted him if the trial court Ad- any mitigating evidence. introduce petition, appellant to dressing In his contends we prong of the Strick- neglected the second to address his issue of insuffi- test, proba- “the the court found that ciency ing land of the evidence to support the find- received bility that Blake would have of his status as a habitual offender. error his counsel’s lesser sentence He further maintains because the evi- confidence is sufficient undermine our law, dence was insufficient as a matter of then 535. The court the outcome.” Id. upon he cannot of- be retried the habitual fender count. An examination of the trial INGRAM, Appellant Stanley during appellant’s record reveals that mony testi- (Defendant Below), guilt phase at the two prior burglary convictions were Indiana, Appellee STATE brought out the course of his direct and Below). (Plaintiff This testimony cross-examination. subse- quently incorporated into the evidence 49S00-8610-CR-936. No. phase introduced at the habitual Supreme Court of Indiana. proceeding. trifurcated 14, 1989. Dec. phase, during the State’s Also habitual 13 and were introduced Exhibits Nos. appellant’s prior felony convic document burglary two tions, apparently the same during his testi mentioned convictions 13 consisted of an en mony. Exhibit No. try judgment sentencing order CCR-75-88, No. wherein Cause of bur convicted on November 29, 1976 glary and sentenced on November (1) (10)years. No. 14 to one to ten Exhibit April documented burglary of his in Cause No. CCR-76-179 and (10) twenty (20)years ten sentence of May 16, argues no evi- dence was adduced to show the dates of felonies, commission of the the second burglary proved was not com- sentencing mitted after on the first required by conviction as 50-2-8(b); 35- they and thus were insufficient as a matter of law sustain his habitual finding. offender gard. isHe correct in this re- offender finding of habitual A commission proof status, absent fun felonies, constitutes dates be reversed. must error and damental Ind., N.E.2d v. State Steelman proceed offender in a habitual Even evidentiary insuffi is ing, due if reversal error,” is retrial “trial opposed to ciency as considera jeopardy double due to barred tions. Phillips v. State Therefore, remand N.E.2d retried be case, while instant felony-murder murder, robbery and on the charges, subjected to again be may not he upon determination offender a habitual charges. same these rehearing is de- petition The State’s rehearing is

nied; appellant’s remanded this cause granted; not in- proceedings further consistent and DICK- SHEPARD, C.J., DeBRULER JJ.,

SON, concur. J.,

PIVARNIK, participating. notes we then prejudice assess privately accruing the cumulative first that his expenses compilation the accused to see of retained for a flat fee to include whether the Indianapolis, counsel’s errors has and maintained office result under necessitating reversal unreliable, plan Johnson admit to a to set overheard Williams, su- prong. second Strickland’s triggerman. up appellant as the to the other proceed therefore pra. We then introduced the counsel. or omissions acts Tinker, also an inmate at the Allen Darnell tender, failed Trial counsel Jail, County ques- to the effect he had been instruc- read, any jury failed court trial tions to trying tioned detectives to locate the an affirm- an alibi that the effect weapon. murder told Eggie Prior to Tinker had (Counsel, in law. under ative inmate he had heard as an whatso- instructions fact, no tendered taking say Lee that he trifur- phase of during any ever cated anyone, that Briddie murder for sister’s maintains proceeding.) husband, Briddie meant more

Case Details

Case Name: Smith v. State

Court Name: Indiana Supreme Court

Date Published: Mar 7, 1990

Citation: 547 N.E.2d 817

Docket Number: 02S00-8805-PC-489

Court Abbreviation: Ind.