Amos v. State

• Docket Number: 23A-PC-82
• Decision Date: 24 August 2023
• Parties: Maurice Amos, Jr., Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

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Maurice Amos, Jr., Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.

No. 23A-PC-82

Court of Appeals of Indiana

August 24, 2023

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.

Appeal from the Grant Circuit Court The Honorable Mark E. Spitzer Judge Trial Court Cause No. 27C01-1701-PC-4

ATTORNEYS FOR APPELLANT

Amy Karozos Public

Defender of Indiana

Joanna Green

Deputy Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Theodore E. Rokita

Attorney General of Indiana

Ian McLean Supervising

Deputy Attorney General

Indianapolis, Indiana

MEMORANDUM DECISION

Tavitas, Judge.

Case Summary

[¶1] In 2013, Maurice Amos was convicted of murder, attempted murder, and receiving stolen auto parts. The jury also found him to be an habitual offender. Following an unsuccessful direct appeal, Amos filed a petition for postconviction relief, which the post-conviction court ("PC Court") denied. On appeal, Amos contends that the PC Court clearly erred, and he argues that: 1) the trial court's denial of Amos's motion to continue the jury trial violated Amos's right to counsel of his choice; 2) witness testimony violated Amos's due process rights; and 3) Amos's trial and appellate counsel were ineffective. We find Amos's arguments without merit and, accordingly, affirm.

Issues

[¶2] Amos raises several issues on appeal, which we consolidate, reorder, and restate as:

I. Whether Amos's arguments regarding his right to counsel of choice and due process rights are available for appellate review.

II. Whether the PC Court's determination that Amos's trial counsel was not ineffective was clearly erroneous.

III. Whether the PC Court's determination that Amos's appellate counsel was not ineffective was clearly erroneous.

Facts

[¶3] The facts underlying Amos's convictions were set forth in Amos's direct appeal as follows:

In the late evening hours of November 1, 2012, Cletus Luster went to 3021 South Branson Street in Marion to sell one ounce of marijuana to Amos for $300. Danielle Stalling, who also knew Amos, agreed to drive Cletus to the location. Stalling parked her vehicle in the alley behind the residence, and Amos came out of the residence and met them at the vehicle. After a brief discussion, Amos went back inside the residence to show his family the marijuana and see if they wanted it. Amos instructed Stalling to move her vehicle into a nearby gravel parking spot, which she did. Her car was facing Amos's house.

Amos then exited the house with a firearm and start[ed] shooting into Stalling's car. Amos fired at least fifteen shots. Stalling was struck eight to ten times in the chest and abdomen. Cletus was also struck multiple times and heard Stalling yell out "Reesie," which was Amos's nickname. Cletus then blacked out momentarily, and when he awoke he saw Amos in the front driver's side of the car. Cletus "act[ed] like [he] was dead" until Amos left. As Amos was returning to the house, Cletus grabbed his own firearm, shot at Amos, and then fled the scene.

At 10:19 p.m. the Marion Police Department received a report of shots fired. Officer Chris Butchie arrived at the scene and observed Stalling lying on the ground with multiple gunshot wounds. Officer Butchie observed that Stalling was having trouble breathing, and she stated, "please don't let me die." Officer Butchie "knew that her health was deteriorating quickly" and he "asked her . . . who shot you." Stalling twice responded, "Maurice Green." Stalling also told the officer that "Cletus" had been in the passenger seat. Stalling died about thirty minutes later, before she could be treated at a hospital.

Across the alley and "just feet away" from the crime scene, officers observed a Nissan Maxima. When "nobody had come and asked about the vehicle or inquired about it," the officers ran the license plate number and the vehicle identification number and learned that the vehicle had been reported stolen in Chicago. Officers had the vehicle impounded. Thereafter, officers searched the vehicle and recovered an IRS letter addressed to Amos.... Officers also recovered letters addressed to Amanda Green and Shakara Green, Amos's mother and sister, respectively. And officers recovered a box of Newport-brand cigarettes, which matched the brand of a half-smoked cigarette the officers had collected from the crime scene. The cigarette collected from the crime scene contained Amos's DNA.

On November 7, 2012, the State charged Amos with murder, a felony; attempted murder, a Class A felony; possession of a firearm by a serious violent felon, a Class B felony; receiving stolen auto parts, as a Class D felony; and with being an habitual offender. After a continuance, the trial court set Amos's jury trial for July 29, 2013. On July 26-the Friday before the Monday trial was to commence-and again at the start of the trial on July 29, Amos moved to continue the trial so that he could obtain new counsel. The court denied Amos's requests.

At the ensuing trial, the State called Cletus to testify, and he described the November 1 shooting. Phone records corroborated Cletus's testimony that he and Amos had arranged to meet during the evening of November 1.... Three responding officers, including Officer Butchie, testified that Stalling had said at the scene that she had been shot by Maurice Green. Five witnesses testified that Amos and/or his family had the last name of Green. One of those witnesses was the aunt of Amos's mother. Another was Latosha Georgia, a friend of Amos's, who testified that she had "assumed" Amos's last name was Green because it was his family's last name. The State also had admitted into the record the DNA evidence from the cigarette at the crime scene and items recovered from the Nissan Maxima, including the IRS letter....

The jury found Amos guilty of murder, attempted murder, and receiving stolen auto parts. At the ensuing trial on Amos's status as an habitual offender, the State introduced certified records that demonstrated that Amos had previously been convicted of two Class C felonies in June of 2011 and a Class D felony, along with several misdemeanors, in October of 2007. However, the judgment of conviction on the October 2007 charges erroneously stated that Amos pleaded guilty to a "Class D Misdemeanor." The jury found Amos guilty of being an habitual offender, and the court entered its judgment and sentenced Amos accordingly.

Amos v. State, No. 27C01-1211-MR-251, slip op. pp. 2-5 (Ind.Ct.App. July 16, 2014) (record citations omitted).

[¶4] Amos appealed and argued, among other things: 1) the trial court abused its discretion by permitting Latosha Georgia to testify that she assumed Amos's last name was Green; 2) the trial court abused its discretion and violated Amos's right to counsel of his choice by denying Amos's motion to continue the trial so that Amos could obtain private counsel; and 3) the State presented insufficient evidence to support Amos's status as an habitual offender. A panel of this Court rejected Amos's arguments in an unpublished opinion. See generally id. [¶5] On January 23, 2017, Amos filed a petition for post-conviction relief.^[1] Amos argued, among other things, that: 1) the trial court's denial of his motion to continue violated his right to counsel of his choice; 2) Georgia's testimony violated his due process rights; and 3) his trial and appellate counsel were ineffective. The PC Court held an evidentiary hearing on Amos's petition on August 2, 2022, and the PC Court later entered findings of fact and conclusions of law denying the petition. Amos now appeals.

Discussion and Decision

[¶6] Post-conviction proceedings are civil proceedings in which a defendant may present limited collateral challenges to a conviction and sentence. Gibson v. State, 133 N.E.3d 673, 681 (Ind. 2019), reh'g denied; Ind Post-Conviction Rule 1(1)(b). "The scope of potential relief is limited to issues unknown at trial or unavailable on direct appeal." Gibson, 133 N.E.3d at 681. "Issues available on direct appeal but not raised are waived, while issues litigated adversely to the defendant are res judicata." Id. The petitioner bears the burden of establishing his claims by a preponderance of the evidence. Id.; P.-C.R. 1(5).

[¶7] When, as here, the petitioner "appeals from a negative judgment denying postconviction relief, he 'must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision.'" Gibson, 133 N.E.3d at 681 (quoting Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000)). When reviewing the PC court's order denying relief, we will "not defer to the post-conviction court's legal conclusions," and the "findings and judgment will be reversed only upon a showing of clear error- that which leaves us with a definite and firm conviction that a mistake has been made." Bobadilla v. State, 117 N.E.3d 1272, 1279 (Ind. 2019). When a petitioner "fails to meet this 'rigorous standard of review,' we will affirm the post-conviction court's denial of relief." Gibson, 133 N.E.3d at 681 (quoting DeWitt v. State, 755 N.E.2d 167, 169-70 (Ind. 2001)).

I. Amos's right-to-counsel-of-choice and due-process arguments are unavailable for post-conviction review

A. Right to Counsel of Choice

[¶8] Amos argues that the trial court violated Amos's right to counsel of his choice by denying Amos's motion to continue the jury trial. The jury trial was scheduled for Monday, July 29, 2013, and on July 24, 2013, Amos asked the trial court if it would be "amenable" to granting a...