547 N.E.2d 817 (Ind. 1989), 02S00-8805-PC-489, Smith v. State

Docket Nº:02S00-8805-PC-489.
Citation:547 N.E.2d 817
Party Name:Charles SMITH, Appellant, v. STATE of Indiana, Appellee.
Case Date:December 13, 1989
Court:Supreme Court of Indiana

Page 817

547 N.E.2d 817 (Ind. 1989)

Charles SMITH, Appellant,


STATE of Indiana, Appellee.

No. 02S00-8805-PC-489.

Supreme Court of Indiana.

December 13, 1989

Opinion on Petition for Rehearing March 7, 1990.

Page 818

Susan K. Carpenter, Public Defender of Indiana, Teresa D. Harper, Rhonda R. Long-Sharp, Linda R. Torrent, Deputy Public Defenders, Indianapolis, for appellant.

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

GIVAN, Justice.

This is an appeal from the denial of post-conviction relief. A trifurcated jury trial proceeding held in 1983 resulted in the conviction of appellant of Murder and Felony Murder, a jury recommendation to impose the death penalty, and a finding of habitual offender status. The trial court correctly merged the convictions, entered judgment of conviction for Murder, and sentenced appellant to death. We affirmed the trial court on direct appeal. Smith v. State (1985), Ind., 475 N.E.2d 1139. Appellant subsequently filed his petition for post-conviction relief, which was heard in the trial court and denied.

Appellant contends the post-conviction 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 ineffectiveness of counsel, appellant must prove that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Appellant also must prove that counsel's failure to function was so prejudicial as to deprive him of a fair trial. A fair trial is denied when the conviction or sentence resulted from a breakdown in the adversarial process that rendered the result unreliable. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To meet his burden, appellant must overcome by strong and convincing

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evidence a presumption that counsel has prepared and executed his client's defense effectively. Terry v. State (1984), Ind., 465 N.E.2d 1085.

Ineffectiveness of counsel revolves around the particular facts of each case. This Court will not speculate about what may have been the most advantageous strategy, and isolated bad tactics or inexperience does not necessarily amount to ineffective assistance. Mato v. State (1985), Ind., 478 N.E.2d 57. Nonetheless, perfunctory representation does not satisfy the mandates of the Sixth Amendment. Magley v. State (1975), 263 Ind. 618, 335 N.E.2d 811." Williams v. State (1987), Ind., 508 N.E.2d 1264, 1266-67.

To prevail on appeal, appellant must show that the evidence clearly and unerringly leads to a conclusion that he satisfied the standard quoted above. Id.

The State contends that given the availability of this claim on direct appeal, appellant's failure to raise it at that time operates as a waiver of the issue, citing Johnson v. State (1986), Ind., 502 N.E.2d 90. While that opinion did hold a post-conviction claim of ineffective trial counsel to have been waived by failure to raise it on direct appeal, its cited authority for that proposition, Phillips v. State (1982), Ind., 441 N.E.2d 201, involved a post-conviction action subsequent to a guilty plea and dealt with no waiver issues. Johnson itself went on to reach the merits of the ineffective counsel claim, finding no abridgment of that petitioner's Sixth Amendment right to counsel. Similarly, in Brewer v. State (1986), Ind., 496 N.E.2d 371, cert. denied, 480 U.S. 940, 107 S.Ct. 1591, 94 L.Ed.2d 780, we held that although ineffective assistance of counsel had been raised on direct appeal, the particular argument had not been advanced at that time and thus was waived.

In the case at bar, the post-conviction court chose to reach the merits of appellant's claim in denying his petition, making no findings regarding the State's allegation of waiver. We thus are left on review only with the trial court's ruling on the merits. Young v. State (1986), Ind., 500 N.E.2d 735.

In support of his claim, appellant recites several instances of allegedly substandard performance of his trial counsel. He notes first that his trial counsel was privately retained for a flat fee to include expenses and maintained his office in Indianapolis, while the crime occurred, trial was held, and potential witnesses lived in Fort Wayne. Counsel was employed February 5, 1983 but waited until approximately three months before the trial, which occurred in September 1983, to attempt to locate and interview defense witnesses. No State's witnesses were ever interviewed or deposed by appellant's counsel.

Appellant's theory of defense was his alibi that he had been at Eley's Pool Hall at the time of the crime, and that Eggie Lee, one of the participants in the crime, was lying to protect family members. John Eley, the pool hall owner, was not contacted by counsel until the day before trial and was not listed on appellant's pretrial alibi notice. The State objected at trial to Eley's testimony in corroboration of appellant's alibi, and the trial court summarily excluded it due to the violation of the alibi statute, Ind.Code Sec. 35-36-4-1. Had the alibi notice been properly constituted, exclusion of Eley's testimony would have been error. Wiseheart v. State (1986), Ind., 491 N.E.2d 985. Counsel did suggest the State could interview Eley, but he did not explicitly request a continuance or make an offer to prove; thus no error was preserved for review. Id.

Appellant maintains the prejudice resulting from the exclusion of Eley's testimony was "devastating" to his defense. However, in the absence of any testimony or statement by Eley introduced at the post-conviction hearing, we cannot find the excluded testimony would not have been merely cumulative to that of the five alibi witnesses who did testify at trial that appellant frequently visited Eley's after 5:00 p.m., but were not sure he was there on the evening of the crime. Thus any prejudice resulting here has not been shown to be great enough, standing alone, to satisfy the second prong of the Strickland test. See Marsillett v. State (1986), Ind., 495 N.E.2d 699.

In most cases, trial errors which do not justify reversal when taken separately do not attain reversible stature when taken together. Stonebraker v. State (1987), Ind., 505 N.E.2d 55. In an ineffective assistance of counsel context, however, while each alleged error or omission may be reviewed separately under the substandard performance prong of Strickland, we then assess the cumulative prejudice accruing to the accused to see whether the compilation of counsel's errors has rendered the result

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unreliable, necessitating reversal under Strickland's second prong. Williams, supra. We therefore proceed to the other alleged acts or omissions of counsel.

Trial counsel failed to tender, and the trial court failed to read, any jury instructions to the effect that an alibi is an affirmative defense under the law. (Counsel, in fact, tendered no jury instructions whatsoever during any phase of appellant's trifurcated proceeding.) Appellant maintains the absence of an alibi instruction rendered unreliable the jury's determination of guilt because the instructions given purported to be all-inclusive; the jury thus could have inferred from the absence of any mention of alibi in their charge that the trial court considered appellant's defense to be of no significance.

A defendant is entitled to an instruction on any defense which has some foundation in the evidence. Thomas v. State (1987), Ind., 510 N.E.2d 651. Counsel here should have tendered an instruction on alibi defense.

Appellant argues counsel was ineffective in failing to properly prepare and conduct impeachment of the State's key witness, Eggie Lee. Counsel had access to prior statements given by Lee to police as well as other investigative reports, but never interviewed him before trial. Lee's trial testimony portrayed appellant in a far more brutal light than any of his prior statements, and was in this regard, and others, inconsistent with them.

Evidence submitted at the post-conviction hearing shows inconsistencies in Lee's testimony as to how and when the gun was acquired. He had stated it was in appellant's possession at the time. However, Briddie Johnson, another participant in the crime, testified at the hearing on his guilty plea (later rescinded) six months prior to appellant's trial that the handgun used to kill Carmen Zink had been obtained by Eggie Lee in a purse-snatching incident a few weeks prior to the murder and had remained in Lee's possession until handed to appellant in the Elegant Farmer parking lot. However, none of the foregoing was used by counsel to impeach Lee's testimony at trial although the State had furnished him with a copy of Johnson's statement before trial.

Briddie Johnson was also Eggie Lee's brother-in-law. Counsel introduced at trial the testimony of Wayne Evans, a fellow jail inmate of Johnson, to the effect that Evans overheard Johnson admit to a plan to set up...

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