OPINION
Case Summary
Gregory Terry appeals his convictions of dealing cocaine, a Class B felony, possession of cocaine, a Class D felony, and knowing flight from a law enforcement officer, a Class A misdemeanor, following a jury trial, and the post-conviction court's denial of his petition for post-conviction relief. 1 Concluding that Terry received effective assistance of counsel, that his due process rights were not violated by the State's destruction of evidence, that the trial court's instruction was proper, and that any error in the admission of identification evidence was harmless, we affirm.
Issues
In this appeal, Terry raises four issues, which we restate as follows:
(1) Whether Terry received effective assistance of counsel;
(2) Whether Terry's due process rights were violated when the State destroyed evidence following Terry's trial;
(3) Whether the trial court prоperly instructed the jury on the State's burden of proof; and
(4) Whether the trial court properly admitted identification evidence.
Facts and Procedural History
On April 6, 2004, Indianapolis Police Department ("IPD") Officers Bryant Allen and Christina Slack were on the east side of the city in an unmarked vehicle attempting to make an undercover narcotics purchase. Officers Karla Baldini and Richard Weaver were following Officers Allen and Slack in another unmarked vehicle. From their vehicle, Officers Allen and Slack observed a man later identified as Terry walking on the sidewalk. The Officers motioned Terry over to their vehicle and asked him if he had any crack-cocaine for sale. Terry responded that he did, and after a brief conversation, gave the officers what was later determined to be a quarter gram of cоcaine in exchange for a twenty-dollar bill previously marked by Officer Weaver. As Terry walked away from the vehicle, he passed Officers Weaver and Baldini's vehicle.
Later that day, Officer Baldini called several numbers that appeared on the pager, pretending to be a citizen attempting to return the pager to its owner. One individual stated that the only person whom he paged from the number identified by Officer Baldini was his brother, Gregory Terry. 2 Officer Baldini then located a picture of Terry in IPD records, and recognized him as the man who had sold Officers Slack and Allen cocaine earlier that day. Officer Baldini showed Terry's picture to the other officers involved, and each officer likewise identified Terry.
On April 15, 2004, the State filed charges agаinst Terry. Terry had his initial hearing on May 5, 2004. Todd Wood-mansee entered his appearance as Terry's public defender on May 12, 2004, but on June 11, 2004, Karen Huelskamp entered her appearance replacing Woodmansee. On June 80, 2004, Terry filed an Affidavit in Support of the Belated Notice of Alibi, which the trial court granted the same day. On July 1, 2004, Terry filed his Notice of Alibi Defense and a Motion to Produce Evidence, specifically requesting "[the names and phone numbers of people contacted to verify that the pager belonged to Gregory Terry" and "[tlhe business ree-ords from the service provider on the pager stating who the owner of the pager was." Appellant's Appendix at 30. Attorney Huelskamp filed this motion because Terry claimed he did not own the pager, and therefore, she wanted to determine the scope of the investigation the police had conducted regarding the pager.
On August 4, 2004, Terry requested a speedy trial, which the trial court scheduled for October 4, 2004. - The State responded to Terry's discovery request approximately two weeks before trial, indicating it had conducted no investigation beyond the phone calls to determine the pager's ownership. The State explained that the delay in response to discovery was due to the prosecutor being out of town for approximately four weeks. On September 24, 2004, Terry filed a Motion to Suppress the Officers' pre-trial and in-court identifications of Terry. Attorney Huel-skamp told the trial court that although she did not receive timely discovery from the State, she chose to file a motion to suppress rather than a motion to exclude, in part because of the imminent speedy trial date. After a hearing, the trial court denied Terry's motion to suppress.
At the October 4 trial, Officers Baldini, Allen, Slack, and Weaver testified for the State and identified Terry as the man who
The jury found Terry guilty of all charges after his trial on October 4. On November 5, 2004, the trial court sentenced Terry to an aggregate sentence of twelve years. Terry filed his notice of appeal on November 30, 2004. Upon petition by Terry, this court terminated his direct appeal on March 28, 2005, and remanded to the trial court with instructions to conduct post-conviction proceedings.
Terry then filed a Petition for Post-Conviction Relief alleging, among other things, ineffective assistance of counsel. At the post-conviction hearing, Terry requested that the post-conviction court deem his petition amended to conform to the evidence that two days after trial, Officer Baldini instructed IPD's property branch to schedule the pager for disposal, and that the pager was destroyed roughly two and one-half months later. The post-conviction court granted this request. Both parties submitted suggested findings of fact and conclusions of law. The post-conviction court adopted the State's findings, and denied Terry's Petition for Post-Conviction Reliеf. Terry now appeals.
Discussion and Decision I. Ineffective Assistance of Counsel
Terry appeals the post-conviction court's denial of his petition, arguing that the post-conviction court should have granted his petition because he received ineffective assistance of counsel at his trial.
A. Standard of Review
Post-conviction proceedings are civil in nature. Stevens v. State,
When reviewing ineffective assistance of counsel claims, Indiana courts use the two-pronged test set forth in Strickland v. Washington,
B. Terry's Representation at Trial
Terry alleges that he received ineffective assistance of counsel based on several acts or omissions by Attorney Huelskamp during the course of her representation. We address each in turn. 4
1. Counsel's Strategy Regarding Pager
Terry first alleges that his trial counsel was ineffective for her "[flailure to follow through on strategy regarding [the] pager." Appellant's Brief at 26. Terry argues that Attorney Huelskamp's original strategy was to establish who owned the pager, and with whom Officer Baldini spoke regarding ownership of the pager, and that it was unjustifiable for her to file a motion to suppress instead of either persisting in attempts to learn the pager owner's identity, moving to exclude the pager as evidence, or seeking dismissal of the charges based on the State's failure to timely respond to discovery. We disagree.
With regard to Attorney Huel-skamp's failure to further investigate the pager's ownership, Attorney Huelskamp had "a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland,
With regard to Terry's argument that Attorney Huelskamp should have sought exclusion of the evidence or dismissal based on the State's untimely response to her discovery request, unless evidence demonstrated the State deliberately failed to reply timely to the request, or otherwise acted in bad faith, thereby denying Terry the right to a fair trial, exclusion of evidence is not a proper sanction. Green v. State,
2. Admission of Pager Into Evidence
Terry next argues that Attorney Huelskamp's assistance was ineffective based on her failure to object to the admission of the pager into evidence. Ordinarily, a decision to "explain evidence, rather than exclude it, is a taсtical decision within counsel's reasonable professional judgment." Mullins v. State,
3. Admission of Hearsay Evidence
Next, Terry argues that Attorney Huelskamp's assistance was inceffec-tive based on her failure to object to, or request a limiting instruction for, hearsay evidence presented by the State. Terry argues that Attorney Huelskamp should not have allowed Officer Baldini to testify that someone she spoke to on the telephone linked Terry to the pager. Attorney Huelskamp testified that she considered objecting to the admission of the evidence, but "decided that since we had so many Officers saying that it was Mr. Terry that perhaps it would be in his benefit to show that there was not a lot of investigation done when they found the pager," and that she "didn't want to limit what [she] would be able to get into with the pager." P.C. Tr. at 69. Therefore, Attorney Huelskamp felt it was consistent with her defense strategy to allow
4. State's Closing Argument
Terry next argues that Attorney Huel-skamp's assistance was ineffective based on her failure to object to some of the State's comments during closing argument. Specifically, Terry argues that Attorney Huelskamp should have objected to the following statements: (1) "the law states it is permissible for the officers just to see one photo [;] it is not required that they see an entire photo array," trial tr. at 167; and (2) "There's fifteen (15) to twenty (20) people [at his sister's barbeque] and where are they today, why aren't any of those other individuals here to corroborate that story." Id. at 166.
With regard to the first comment, Terry has failed to demonstrate how this comment caused him prejudice, even if this statement incorrectly states the law. 5 We conclude that this statement had no effect on the outcome of the case and that therefore Terry cannot meet Strickland's prejudice prong.
With regard to the second comment, "the prosecutor's comment upon the lack of evidence by the defense concerning otherwise incriminating evidence against the defendant is proper as long as the State does not focus upon the accused's failure to testify." Peterson v. State,
Terry argues that the State's destruction of the pager after his trial prevented him from exercising his due process rights by testing the pager and obtaining proof of its ownership, 6 and that the post-conviction court erred by not granting him relief based on this denial of rights. 7 We disagree.
Criminal defendants have the right to examine physical evidence in the hands of the State under the Fourteenth Amendment to the United States Constitution and Article One, Section Twelve of the Indiana Constitution.
8
Smith v. State,
When determining whether Terry's due process rights were violated by the State's failure to preserve the pager, we must first determine whether the pager was "potentially useful evidence" or "materially exculpatory evidence." Blanchard v. State,
Before addressing the merits of Terry's argument, we note that Youngblood and the Indiana cases following it all deal with the destruction of evidence prior to the conclusion of a defendant's trial. Terry's
1. Nature of the Destroyed Evidence
"[WJhile a defendant is not required to prove conclusively that the destroyed evidence is exculpatory, there must be some indication that the evidence was exculpatory." Blanchard,
Terry argues that the pager is materially exculpatory evidence because "the pager was the only piece of evidence which could have affirmatively proven the identification of Terry as the drug dealer was erroneous," and that "Jt was apparent to the State before the pager was destroyed that Terry believed it would prove his innocence ...." Appellant's Brief at 28-29. We disagree.
In Chissell v. State,
Even if the tests revealed that some unconnected third рerson owned the pager, we conclude that this evidence would not be exculpatory. The pager was not the only piece of evidence linking Terry to the crime scene. Indeed, the principal evidence relied upon by the State was the testimony of four eyewitness police officers, who all identified Terry as being on the seene. In fact, Attorney Huelskamp demonstrated that the State could not prove that Terry owned the pager, and Officer Baldini testified that the man with whom she spoke did not say that the pager belonged to Terry. Trial Tr. at 85. The mere fact that Terry did not own the pager that initially led an officer to discover Terry's identity does not tend to clear Terry from guilt. Instead, such evidence would merely further Attorney Huel-skamp's argument at trial that the police investigation was incomplete.
The pager does, however, fit within the definition of "potentially helpful evidence." In Land,
We hold that the pager was potentially helpful evidence, and therefore Terry must demonstrate that the State's failure to preserve it was in bad faith.
2. Lack of Bad Faith by the State
In order to show that the State acted in bad faith, it is not enough to show "simply bad judgment or negligence." Land,
Two days after Terry was convicted, Officer Baldini authorized IPD's property branch to schedule the pager for destruction. The pager was actually destroyed eleven weeks later. Terry argues, "given the size and crucial nature of the exhibit and the inexcusable haste with which [the pager] was disposed, bad faith is the only plausible explanation." Appellant's Br. at 30. However, Terry provides no actual evidence that Officer Baldini or anyone else acted in bad faith. The mere assertion that the circumstances suggest bad faith is not sufficient to establish that the State acted in bad faith. See Bivins v. State,
Moreover, the cireumstances here do not particularly point to bad faith on the part of the State. The pager was destroyed pursuant to IPD procedures, and its movements and destruction were fully documented. Before its destruction, the pager was photographed, a picture of it was included with the other exhibits, and its serial number was recorded. Although the State was aware that Terry was appealing his conviction, Terry has put forth no evidence that Officer Baldini knew that Terry, on appeal or on petition for post-conviction relief, would desire access to the pager in order to determine ownership. Because Terry's reasonably calculated trial defense concentrated on the failure of the police to fully investigate the pager's ownership and was not prediсated on the pager's actual ownership, we cannot even say that Officer Baldini should have expected that Terry would want to test the pager after his conviction. Cf. Land,
Because Terry has not demonstrated that the State destroyed the pager in bad faith, he has not demonstrated a violation of his due process rights, and the post-conviction court did not err in refusing to grant relief based on the State's destruction of the pager.
III. Trial Court's Instruction on Reasonable Doubt
Terry argues that the trial court committed reversible error by giving the following instruction on reasonable doubt:
If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you should find him or herguilty. If on the other hand, you think there is a real possibility that he or she is not guilty, you should give him or her the benefit of the doubt and find him or her not guilty.
Post Conviction Appendix at 54. However, as Terry concedes in his brief, our supreme court has approved the precise instruction given to the jury in this case. Williams v. State,
IV. Admission of Identification Evidence
Terry argues that the trial court improperly denied Terry's motion to suppress the Officers' pre-trial and in-court identifications. Although Terry originally challenged the admission of the pre-trial and in-court identifications through a motion to suppress, he appeals following a conviction and challenges the admission of such evidence at trial. Therefore, the issue is whether the trial court abused its discretion by admitting evidence of the identifications at trial. Washington v. State,
A. - Pre-Trial Identification Evidence
Terry argues that the trial court improperly admitted the testimony of the Officers regarding their pre-trial identifications. Specifically, Terry argues that the Officers identified Terry pursuant to an impermissibly suggestive procedure in which the Officers viewed a single photograph to make their identification. We do nоt decide whether the procedure used by the Officers was impermissibly suggestive because we conclude that any error in the admission of the evidence was harmless.
The Due Process Clause of the Fourteenth Amendment requires suppression of testimony regarding a pre-trial identification made pursuant to an imper-missibly suggestive procedure. Hyppolite v. State,
The display of a single photograph of the defendant to a lay witness is impermissibly suggestive. Dorsey v. State,
In Miles, the police officer, along with a confidential informant, met the defendant and purchased narcotics. The officer then returned to the poli¢e station and asked to see a picture of the defendant in order to verify his identity. We held that this procedure was not unduly suggestive, finding that the officer acted reasonably in conducting his investigation. Id. at 240-41. As in Miles, Officer Baldini had seen Terry commit a crime, and after receiving information she reasonably believed to disclose Terry's identity, viewed a picture of Terry to verify his identity. Therefore,
On the other hand, the question of whether the procedure through which Officers Allen, Slack, and Weaver made their pre-trial identifications of Terry was unduly suggestive is an open question.
9
Cf. Hyppolite,
B. In-Court Identification Evidence
"[Rlegardless of error in pretrial identification procedures or their suggestiveness if there is sufficient bаsis for identification independent of the pretrial procedure, there is no error in permitting the in-court identification." Badelle v. State,
[1] the amount of time the witness was in the presence of the perpetrator and the amount of attention the witness had focused on him, [2] the distance between the two and the lighting conditions at the time, [8] the witness's capacity for observation and opportunity to perceive particular characteristics of the perpetrator, [4] the lapse of time between the crime and the subsequent identification, [5] the accuracy of any prior descriptions, [6] the witness's lеvel of certainty at the pre-trial identification and [7] the length of time between the crime and the identification.
Wethington,
The cireumstances surrounding the cocaine sale permitted all Officers to adequately view Terry. This incident occurred at roughly one o'clock in the afternoon on a clear day. Terry was in sight of the Officers for at least a few minutes, and Officers Baldini, Allen, and Slack testified that their primary focus was on Terry during this period. Officer Weaver testified that he watched approximately seventy percent of the transaction between Terry and Officers Allen and Slack. Officers Allen and Slack observed Terry from a distance of five feet or less for at least two minutes while Terry talked to Officers Allen and Slack through the passenger window of the Officers' vehicle. Officers Bal-
The cireumstances relating to the pretrial identification also support the conclusion that the Officers have a sufficient independent basis for the in-court identification. Offiсer Baldini viewed the photograph of Terry roughly four hours after the drug sale, and showed Officer Weaver the picture of Terry at the same time she found it. Both Officers "immediately ree-ognized" the man in the photograph as the man from the drug transaction. Trial Tr. at 78. Shortly thereafter, Officer Baldini showed Officer Allen the photograph, still roughly four hours after the incident, and he also "immediately" recognized the man in the photograph as the person who had sold him and Officer Slack the cocaine. Id. at 99. Finally, at eight o'clock the following morning, approximately twenty hours after the incident, Officer Baldini showed the photograph to Officer Slack, who also recognized Terry.
In sum, all Officers had ample opportunity to observe Terry during the commission of the crime, and made their pre-trial idеntifications shortly thereafter with high levels of confidence. We conclude that each Officer had an adequate independent basis to support an in-court identification of Terry. Therefore, the trial court properly admitted the in-court identifications. 10
Conclusion
We affirm Terry's convictions. First, we hold that the post-conviction court did not err in denying Terry's petition for post-conviction relief because Terry received effective assistance of counsel at his trial and his due process rights were not violated by the State's destruction of evidence after Terry's trial. Second, we hold that the trial court properly instructed the jury on the reasonable doubt standard of proof. Third, we hold that the trial court properly admitted the in-court identifications of Terry, and that therefore any error in the admission of testimony relating to the pre-trial identifications was harmless.
Affirmed.
Notes
. Terry's due process and ineffective assistance of counsel claims come to us on appeal from the post-conviction court's denial of Terry's Petition for Post-Conviction Relief. Terry's claims regarding the jury instruction and the admission of identification evidence come to us on direct appeal.
. At the hearing on Terry's motion to suppress, Officer Baldini testified that the person to whom she spoke identified Terry as his brother. At trial, Officer Baldini testified that the person could have said that Terry was his brother or close family member.
. Officer Looper also testified for the State, but the trial court sustained Terry's objection to his identification of Terry.
. Terry also argues that he received ineffеctive assistance of counsel based on Attorney Huelskamp's failure to object to the jury instruction on reasonable doubt and Attorney Huelskamp's litigation of the suppression of the in-court and pre-trial identifications. We hold, infra, that the trial court properly gave the instruction, properly admitted the in-court identifications, and that the admission of the pre-trial identifications was at most harmless error. Therefore, Terry cannot satisfy Strick land's prejudice prong for his claims based on these matters, and we need not address the performance prong. We note, however, that Attorney Huelskamp attempted to suppress the pre-trial and in-court identifications, actually prevented Officer Looper from identifying Terry at trial, and properly objected to all idеntifications at trial, thereby preserving the issue for appeal. Moreover, in her cross-examinations and closing argument, Attorney Huelskamp consistently attacked the procedures used by the police and the credibility of the identifications.
. As discussed, infra, the question of whether the law permits the procedure by which Officers Slack, Allen, and Weaver made their pretrial identifications has not been decided in Indiana.
. The pager company has no records of an account associated with the pager's serial number. However, a company representative indicated that if the pager was available, the company could perform further tests to establish information relevant to the pager's ownership or subscriptions purchased for the pagеr.
. Terry also argues that the State disposed of the pager in contravention of Indiana Code section 35-33-5-5 and common law property rights. However, section 35-33-5-5 applies only to property "seized by any law enforcement agency as result of an arrest, search warrant, or warrantless search ...." Ind. Code § 35-33-5-5(a); see Tracy v. State,
. The analysis under the Indiana Constitution is identical to the federal analysis. Stoker v. State,
. Officer Baldini, who first identified Terry as the person in the photograph, was the officer responsible for investigating Terry's identity. After conducting the investigation and learning Terry's possible identity, Officer Baldini viewed a photograph of Terry to confirm what her investigation had suggested. On the other hand, the other officers had not been involved in the investigation of Terry's identity, and were merely shown a single photograph of Terry, whom Officer Baldini had previously identified as the person who had sold the officers cocaine.
. We emphasize, however, that this holding does not endorse the procedure of obtaining pre-trial identifications from police officer witnesses by showing them single photographs. On the particular facts of this case, we did not need to reach the issue because the circumstances surrounding the police officers' observation of Terry during the commission of the crime independently instill confidence in the accuracy of the in-court identifications.