Potter v. State
| Decision Date | 29 May 1996 |
| Docket Number | No. 57A04-9504-CR-140,57A04-9504-CR-140 |
| Citation | 666 N.E.2d 93 |
| Court | Indiana Appellate Court |
| Parties | Daniel R. POTTER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
Defendant-Appellant Daniel R. Potter appeals his convictions of rape, 1 a class A felony; confinement, 2 a class B felony; intimidation, 3 a class C felony; and battery, 4 a class A misdemeanor, as well as his adjudication as a habitual offender. 5
We affirm in part, and reverse and remand in part.
Potter presents three issues for our review, but we find only one to be dispositive: whether Potter received effective assistance of counsel.
On April 2, 1994, Potter parked his car and walked to the trailer of his estranged wife, Wendy Potter (Wendy). Potter and Wendy had been married and divorced three times. Two children were born during their first marriage. Each time the two separated, Potter pursued Wendy by following her around, breaking into her home, begging her to reconcile with him, and threatening to kill himself. Wendy usually reconciled with Potter because she felt it was easier to comply with his demands than to leave him.
On April 2, Wendy and one of the children were sick with the flu. That evening, Wendy was in the bathtub when she heard a knock on the door. Although she had instructed her children not to let their father in if he should come to the door, one of the girls opened the door. Wendy got out of the tub, dressed, and went into the living room to see Potter. When she picked up the telephone to call the police, Potter told her the action was pointless and Wendy discovered that her phone line was dead. Wendy argued with Potter, telling him to leave the home. Potter jumped on Wendy and began to beat her on the face, neck, and shoulders with his fists. He also struck her hands and arms when Wendy tried to shield her face. During this time, the children were sitting in a living room chair. They screamed at Potter to stop hitting their mother.
After awhile, Potter stopped beating Wendy. He pulled a kitchen chair in front of the door and sat down so that none of them could leave. He took a large butcher's knife from the front of his pants and removed a homemade sheath from the knife. Potter also had brought a small whiskey bottle and he began drinking from it.
Potter threatened to kill Wendy, the children, and himself. Although he had threatened Wendy's life in the past, he had never before threatened the lives of his children or held a weapon while making his threats. During this time, Potter remained extremely calm. This calm was in stark contrast to his angry behavior upon other occasions when he had beaten Wendy and threatened her life. Because his behavior was so uncharacteristic, Wendy became extremely afraid of him and took Potter's threats seriously. She attempted to appease him by stating that she loved him and would reconcile with him.
A neighbor, Tina Beverly, walked over to Wendy's house to check on her. Beverly knew that Wendy and her daughter were ill with the flu. When Beverly arrived, the lights were unusually low. She knocked on the door and no one answered. Beverly heard Wendy say, "If you loved me, why do you hit me?" (R. at 654). She also heard Potter warn Wendy that if she answered the door, he would kill her. Beverly continued knocking, and Wendy eventually came to the door. The women talked, and Wendy told Beverly that it was not necessary to call the police.
After Beverly left, Potter and Wendy continued talking. The children got tired and were put to bed. Potter did not leave the home. He demanded that Wendy have intercourse with him. She refused saying she had the flu. She offered to masturbate him, but he insisted on intercourse. By this time, Potter had put his knife in the kitchen portion of the trailer; however, Wendy still feared for her life because she felt he had "access to that knife any time he wanted it." (R. at 615). Wendy acquiesced to Potter's demand for sex. Afterwards Potter went to sleep on the floor in front of the door, and Wendy eventually fell asleep on the couch.
The next morning, Wendy talked Potter into re-connecting her telephone line. Potter then took one of the children and went to retrieve his car which he had left a substantial distance away from the trailer.
As a result of this incident, Potter was charged with rape, criminal confinement, intimidation, and battery. After a jury trial, he was convicted as charged and also was adjudicated as an habitual offender.
He now appeals.
Potter contends that he was subject to ineffective assistance of counsel. He claims that his trial counsel:
a. failed to object to highly prejudicial evidence, and "opened the door" for prior misconduct to be admitted;
b. failed to object to the hearsay testimony of Police Officer Anderson c. told the jury that Potter would not be testifying against his counsel's advice;
d. failed to object to the State's final argument which propounded a theory of guilt that was not supported by the evidence;
e. failed to object to a final instruction which allowed Potter to be convicted of a form of rape with which he was not charged. 7
In order to succeed on his claim, Potter must first show that trial counsel's performance was deficient or unreasonable under prevailing professional norms. Marshall v. State, 621 N.E.2d 308, 321 (Ind.1993). We must determine whether the identified acts or omissions, in light of all the circumstances, were outside the wide range of professionally competent assistance. Lowery v. State, 640 N.E.2d 1031, 1041 (Ind.1994), reh'g denied, cert. denied --- U.S. ----, 116 S.Ct. 525, 133 L.Ed.2d 432 (1995). "The proper judicial approach is highly deferential and requires a consideration of the totality of the evidence before the jury." Johnson v. State, 584 N.E.2d 1092, 1106 (Ind.1992), cert. denied 506 U.S. 853, 113 S.Ct. 155, 121 L.Ed.2d 105. It should not be exercised through distortions of hindsight. Clark v. State, 561 N.E.2d 759, 763 (Ind.1990). Counsel is presumed competent, and appellant must present strong and convincing evidence to rebut the presumption. Id.
The appellant must also show that the deficient performance was so prejudicial to his case that he was denied a fair trial. Marshall, 621 N.E.2d at 321. Denial of a fair trial occurs when a conviction results from a breakdown in the adversarial process, rendering the result unreliable and undermining confidence in the result. Id.; Best v. State, 566 N.E.2d 1027, 1031 (Ind.1991). " Madden v. State, 656 N.E.2d 524, 527-28 (Ind.Ct.App.1995), trans. denied (quoting Strickland v. Washington, 466 U.S. 668, 695, 104 S.Ct. 2052, 2068-69, 80 L.Ed.2d 674 (1984)).
When a claim of ineffective assistance is based on counsel's failure to object, the appellant must show that the objection would have been sustained if made. Hunter v. State, 578 N.E.2d 353, 356 (Ind.1991), reh'g denied. Further, while in retrospect one might conclude that the strategy and performance at issue was not the best, isolated instances of poor strategy or unartfully executed examinations do not necessarily amount to ineffectiveness of counsel. Mott v. State, 547 N.E.2d 261 (Ind.1989). We will not second-guess the propriety of trial counsel's tactics. See Hunter v. State, 578 N.E.2d 353, 355 (Ind.1991), reh'g denied.
Potter first posits that his counsel was ineffective for failing to file a motion in limine and failing to object to evidence of his prior misconduct. He points to 31 instances "when the State elicited damning evidence of Potter's alleged uncharged misconduct." Appellant's Brief at 16. He further asserts that his attorney "managed to continue eliciting evidence of Potter's alleged prior misconduct" and opened the door to his history of prior arrests. Id. at 18.
When he alleges a failure to object, an appellant must demonstrate that an objection, had it been made, would have been sustained, and that the failure to object amounted to prejudice so substantial as to undermine the result of the trial. Kutscheid v. State, 592 N.E.2d 1235, 1239 (Ind.1992); Drake v. State, 563 N.E.2d 1286, 1290 (Ind.1990). In his appellate brief, Potter fails to address whether any of the 31 objections would have been sustained. He merely argues that "not one of these alleged acts of prior misconduct was admissible against [him] pursuant to the Indiana Rules of Evidence in effect at the time of his trial." Appellant's Brief at 21. Likewise, he fails to demonstrate prejudice except in a general argument contending that the "jury was likely to draw the 'forbidden inferences,' " there was similarity between the alleged misconduct and his charges at trial, and the use the State made of the testimony in its closing argument. Id. This argument is not sufficient to demonstrate that his trial counsel acted deficiently in not objecting in the enumerated circumstances. Clark, 561 N.E.2d at 763 (); see Swain v. State, 647 N.E.2d 23, 24 (Ind.Ct.App.1995), trans. denied.
However, in his Reply Brief in order to answer the State's arguments, Potter attempts to argue in a cogent fashion the admissibility of and prejudice caused by the 31 instances when his attorney failed to object to...
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