Brewer v. State

• Decision Date: 06 August 1986
• Docket Number: No. 485,485
• Citation: 496 N.E.2d 371
• Parties: James BREWER, Appellant, v. STATE of Indiana, Appellee. S 167.
• Court: Indiana Supreme Court

Page 371

496 N.E.2d 371

James BREWER, Appellant, v. STATE of Indiana, Appellee.

No. 485 S 167.

Supreme Court of Indiana.

Aug. 6, 1986.

Susan K. Carpenter, Public Defender, Paul Levy, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Petitioner, James Brewer, convicted of murder while perpetrating a robbery, was sentenced to death on March 1, 1978, in accord with the jury's recommendation. His conviction and sentence were affirmed in Brewer v. State (1981), 275 Ind. 338, 417 N.E.2d 889, cert. denied, 458 U.S. 1112, 102 S.Ct. 3510, 73 L.Ed.2d 1384. Petitioner filed a Motion for Post-Conviction Relief which was denied on January 24, 1985. Petitioner now directly appeals this denial, alleging the post-conviction court incorrectly determined the following errors had not occurred at trial:

1. ineffective assistance of trial counsel;

2. denial of a motion for continuance;

3. failure to be given Miranda warnings before undergoing a psychiatric evaluation ordered by the court;

4. failure to instruct the jury of their power to decline recommendation of the death penalty;

5. failure to allow defendant to be present at all critical stages of the proceedings;

6. denial of the right to a jury drawn from a fair cross-section of the community;

7. the giving of an instruction allowing the jurors to impute co-defendant's culpability to the defendant; and

8. denial of a Motion for Funds to Hire Experts for an investigation.

The facts underlying the murder of which Petitioner was convicted are as follows. Two well dressed men gained entrance to the Skirpan's residence in Gary, Indiana by purporting to be the police. Once inside, they announced a robbery. One perpetrator was identified as Kenneth Brooks, the other as Petitioner Brewer. During the robbery, sixteen (16) year-old Stephan Skirpan was fatally shot. Stephan's father claimed Petitioner fired the fatal shot, however, there was some discrepancy in Mr. Skirpan's testimony as he later testified Brooks was holding a gun of the same type shown to have been the murder weapon. While the family was held at gunpoint, Brooks and Petitioner robbed them. After the assailants fled, the police and an ambulance were summoned. However, Stephan Skirpan was dead upon their arrival.

I

Petitioner contends the post-conviction court erred by failing to find Petitioner was rendered ineffective assistance of trial counsel because counsel knowingly introduced perjured testimony. Petitioner claims that a week before trial, long after his counsel had filed an alibi notice, Petitioner told his attorney the alibi was not true. Petitioner, nonetheless, insisted upon presenting the alibi defense. Petitioner's attorney thereafter refrained from further contacting the alibi witnesses and did not further investigate the alibi defense. At the post-conviction hearing, Petitioner's trial counsel testified that due to Petitioner's equivocation regarding the alibi and his insistence that the alibi be presented, he felt it was his ethical duty to proceed according to his client's demands. Petitioner now maintains that the weak testimony elicited from the alibi witnesses prejudiced his case.

Ineffective assistance of counsel was an issue raised on direct appeal in this case. Although this particular argument was not advanced on appeal, Petitioner has failed to indicate why he was precluded from raising it at that time. Because post-conviction relief is unavailable for issues available to Petitioner upon original appeal, Petitioner in the instant case has waived this issue. Bailey v. State (1985), Ind., 472 N.E.2d 1260, reh. denied. Moreover, Petitioner has failed to demonstrate reversible error by asserting this argument. One week before trial was to commence Petitioner changed his version of what transpired, nonetheless insisting his alibi defense be presented. His attorney did not know which version Petitioner had given him was the truth. Being caught in a potential ethical bind to follow his client's demand and yet not present possibly perjured testimony, he refrained from further investigating the alibi witnesses until trial. The alleged weakness of the witnesses' testimony is hindsight. Petitioner obviously did not anticipate, nor does he demonstrate, prejudice attributable to the alibi witnesses' testimony. Petitioner's whole argument can be reduced to the claim that his counsel used poor trial strategy, strategy the Petitioner insisted be used. Isolated poor strategy, inexperience, or bad tactics do not necessarily amount to ineffective counsel. Murphy v. State (1985), Ind., 477 N.E.2d 266. In this particular case, counsel's decision to proceed with the alibi, per Petitioner's demand, did not amount to ineffective assistance of counsel.

II

Petitioner assigns as the next error, the post-conviction court's failure to find reversible error when the trial court denied a motion for continuance. Following the return of the guilty verdict by the jury, Petitioner moved for a continuance of the sentencing hearing. The motion was denied because it was not premised upon any grounds and because the jury was sequestered. When this issue was raised on direct appeal we determined it was unfounded because the denial of a motion grounded upon sheer speculation that some benefit might flow from it cannot be said to be arbitrary or abusive. Brewer, 417 N.E.2d at 906. This same rationale still applies.

The quantum of evidence compiled subsequent to the trial court's determination does not affect our initial decision on direct appeal. The determination to be made upon review, whether direct appeal, post-conviction relief, or appeal from the post-conviction relief proceedings is the same; namely, whether the trial court abused its discretion in denying the motion for continuance. Drollinger v. State (1980), 274 Ind. 5, 408 N.E.2d 1228, 1231. In the instant case, the trial judge refused to grant a continuance primarily because the jury was sequestered during this time and the motion did not specify any benefit which would accrue from continuing the sentencing. These remain the facts as they occurred at trial and the trial court did not abuse his discretion for denying this motion.

Petitioner also fails to demonstrate any prejudice warranting relief. He introduced twelve (12) documents at the post-conviction hearing, alleging they comprised the material for which he requested a continuance. The materials consisted of reports dated no later than Petitioner's sixteenth (16th) year, primarily demonstrating a record of juvenile delinquency and a low I.Q., often labelling Petitioner as mentally retarded. However, the trial court, having denied the motion for a continuance due to the sequestration of the jury, appointed a psychologist to examine Petitioner before the trial court imposed sentence. The psychologist's report contained mitigating information equivalent to the reports entered at the post-conviction hearing. Therefore, the trial court took into consideration the psychologist's opinion that Petitioner is in the lowest seven percent of the population as to general intelligence, acts on feelings and impulses without intelligent reflection or analysis and tends not to learn from experiences. Further, the trial court had before it the pre-sentence report demonstrating that Petitioner had problems conforming his behavior to the law from an early age. Accordingly, Petitioner was not prejudiced as the major factors he desired to have considered were presented before a final determination of sentencing was made by the trial judge. We finally note that because Petitioner has not presented an issue of fundamental error, our initial decision on appeal precluded him from raising this issue again. Bailey, supra. Nonetheless, we chose to address Petitioner's argument, concluding it was unfounded.

III

Subsequent to the jury's recommendation of the death penalty, but prior to sentencing, the trial court ordered a psychiatric examination of Petitioner, sua sponte. Petitioner received no further admonition regarding his constitutional right against self-incrimination at this time. The psychologist's report was incorporated into the record without objection by Petitioner. Petitioner now cites Estelle v. Smith (1981), 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359, decided after Petitioner's direct appeal, as grounds for claiming the trial court committed reversible error by not informing him of his right against self-incrimination and his right to counsel during the psychiatric examination.

Estelle does not apply to the facts of Petitioner's case. In Estelle a psychiatric examination was ordered by the court to determine the defendant's competency to stand trial in a capital murder case. The defendant was not advised of any rights prior to or during the examination. At the sentencing phase of the defendant's trial, evidence of the examination was used to establish the defendant's future dangerousness. A defendant's future dangerousness was one of three issues under that State's, (Texas), law that the State needed to prove beyond a reasonable doubt before imposition of the death penalty. The United States Supreme Court held under these facts that the defendant was entitled to an advisement of rights prior to submitting to the psychiatric examination. However, in Estelle the examination elicited incriminatory information which was used to establish a requisite element for imposition of the death penalty. The reasons given by the trial court in the instant case for imposing the death sentence reflect that his purpose in ordering the examination was to determine if any circumstances militated against the recommendation. More importantly, there was nothing in the report prejudicial to Petitioner's interest. Therefore, the post-conviction court did not err by determining Petitioner's rights...