Banks v. State, 82A05-0709-PC-520.
| Decision Date | 15 April 2008 |
| Docket Number | No. 82A05-0709-PC-520.,82A05-0709-PC-520. |
| Citation | 884 N.E.2d 362 |
| Parties | Demario L. BANKS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. |
| Court | Indiana Appellate Court |
John P. Brinson, Evansville, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Joby D. Jerrells, Deputy Attorney General Indianapolis, IN, Attorneys for Appellee.
Appellant-Petitioner, Demario L. Banks (Banks), appeals the post-conviction court's denial of his Petition for Post-Conviction Relief.
We affirm.
Banks presents two issues for our review:
(1) Whether he received ineffective assistance of trial counsel; and
(2) Whether he received ineffective assistance of appellate counsel.
Our supreme court stated the facts in Banks' direct appeal, Banks v. State, 761 N.E.2d 403, 404 (Ind.2002), as follows:
The facts most favorable to the verdict show that Banks and James Morris decided to rob known drug dealer McKnight. In the early morning hours of December 20, 1998, they went to McKnight's home and engaged him in a brief conversation. Suddenly producing a 9mm handgun, Banks told McKnight to lie on the floor and demanded to know where he kept his drugs and money. In the meantime, Morris proceeded to ransack the house finding a large quantity of cocaine and between five and eight thousand dollars in cash. While conducting his search, Morris heard a gun shot. Banks later told Morris that he had accidentally shot McKnight. The two removed jewelry from McKnight's body and fled the scene with jewelry, money, and drugs. A later autopsy revealed McKnight died as a result of a gunshot wound to the chest.
Banks was subsequently arrested and charged with murder, robbery, and felony murder. After a trial by jury, he was convicted as charged. The trial court did not enter a judgment of conviction on the murder and robbery convictions. Finding they merged into the conviction for felony murder, the trial court entered judgment and sentenced Banks on that conviction only to a term of sixty years.
On his direct appeal from the trial court's conviction, Banks first argued that the trial court had erred when it denied his motion for a new trial after a witness had referred to his "carjacking case" when testifying. Id. at 404. Our supreme court concluded that Banks failed to explain why an admonishment from the trial court was not satisfactory to correct the error, and, therefore, Banks was not entitled to relief on that issue. Id. at 405. Banks also argued that the trial court had erred by not allowing him to introduce details about a witness' prior conviction of robbery. Id. Our supreme court determined that a witness who has been convicted of certain infamous crimes, or crimes of dishonesty, may be questioned only about whether he had been convicted of one or more of those crimes; therefore, the trial court did not err by refusing to let Banks question the witness about the details of those crimes. Id. Lastly, the trial court permitted the State to introduce testimony about the contents of letters that had been written by Banks over Banks' objection. Id. Banks argued on appeal that the testimony was inadmissible hearsay, but our supreme court found that it was a statement by a party opponent and therefore admissible at trial. Id. at 406. Accordingly, our supreme court affirmed the judgment of the trial court on January 24, 2002. Id.
On March 3, 2004, Banks filed his Petition for Post-Conviction Relief. On March 9, 2004, the State filed its answer. On August 28, 2006, Banks filed an Amended Petition for Post-Conviction Relief, and on August 28, 2006, the State filed its answer. On January 11, 2007, the post-conviction court heard evidence on Banks' petition, and, on April 27, 2007, the post-conviction court entered its opinion and judgment denying the petition.
Banks now appeals. Additional facts will be provided as necessary.
Post-conviction hearings do not afford defendants the opportunity for a "super appeal." Moffitt v. State, 817 N.E.2d 239, 248 (Ind.Ct.App.2004). The petitioner has the burden of establishing the grounds for post-conviction relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); see also id. Because Banks is appealing from a negative judgment, to the extent his appeal turns on factual issues, he must provide evidence that as a whole unerringly and unmistakably leads us to believe there is no way within the law that a post-conviction court could have denied his post-conviction relief petition. See Stevens v. State, 770 N.E.2d 739, 745 (Ind.2002), reh'g denied, cert. denied, 540 U.S. 830, 124 S.Ct. 69, 157 L.Ed.2d 56 (2003). It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that its decision will be disturbed as contrary to law. Godby v. State, 809 N.E.2d 480, 482 (Ind.Ct.App.2004), trans. denied.
To establish a violation of the right to effective counsel as guaranteed by the Sixth Amendment, petitioners typically must establish both prongs of the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), reh'g denied. Lee v. State, 880 N.E.2d 1278, 1280 (Ind.Ct.App.2008). This is true for both claims of ineffective assistance of trial and appellate counsel. Bieghler v. State, 690 N.E.2d 188, 193 (Ind. 1997). The defendant must prove (1) his or her counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms, and (2) there is a reasonable probability that, but for counsel's failure to meet prevailing professional norms, the result of the proceeding would have been different. Johnson v. State, 832 N.E.2d 985, 996 (Ind.Ct.App. 2005), reh'g denied, trans. denied (citing Strickland, 466 U.S. at 690, 104 S.Ct. 2052). Essentially, the defendant must show that counsel was deficient in his or her performance and the deficiency resulted in prejudice. Johnson, 832 N.E.2d at 1006. Because all criminal defense attorneys will not agree on the most effective way to represent a client, "isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective." Bieghler, 690 N.E.2d at 199. Thus, there is a strong presumption that counsel rendered adequate assistance and used professional judgment. Timberlake v. State, 753 N.E.2d 591, 603 (Ind.2001). If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed. Id.
Where the defendant's counsel fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable. United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). When this happens, no specific showing of prejudice is required. Id.
As a general matter, only a few circumstances give rise to a per se violation of the Sixth Amendment right to counsel: no counsel present at all, or counsel not present at critical stages; complete failure to cross-examine or subject the opposing case to the adversarial process; an actual conflict of interest; and failure to file a requested appeal. The Supreme Court has described these as circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.
Little v. State, 819 N.E.2d 496, 502 (Ind. Ct.App.2004) (quoting United States v. Maria-Martinez, 143 F.3d 914, 917 (5th Cir.1998)).
Banks argues that his trial counsel completely failed to subject the State's case to adversarial testing, a per se violation of his federal Sixth Amendment right to counsel. Specifically, Banks argues that his trial counsel was presumptively ineffective because he: (1) failed to raise any valid defense; (2) admitted that the petitioner had committed all of the elements of felony murder during his opening statement and closing arguments; (3) permitted and recommended to Banks that he testify, knowing that Banks would admit to the offense of felony murder; and (4) disclosed to the State the existence and name of a witness against Banks who was unknown to the State.
Banks alleges that his trial counsel "admitted that the petitioner knowingly committed all the elements of felony murder, murder and robbery during opening statement . . . [and] closing argument." (Appellant's Br. p. 9, 10).
First, we disagree with Banks' characterization of the record. Banks does not direct our attention to any specific statements during Banks' closing argument where his trial counsel made admissions, and upon review of the closing argument, we fail to find where Banks' trial attorney admitted Banks was guilty of any crime. Rather, during closing argument, Banks' trial counsel painstakingly pointed out where witnesses had contradicted themselves and where testimony was inconsistent from witness to witness. Further, Banks' trial counsel pointed out inconsistencies between the State's opening statement, closing arguments, and its witnesses' testimony. Since we do not find any admissions of guilt by Banks' trial counsel during closing argument, we cannot say that his trial counsel provided ineffective assistance by making any such admission.
Further, Banks' allegation that his trial counsel "admitted" all the elements of felony murder during opening statement is unsupported by the record. His attorney began by saying, "we're not conceding anything, but a lot of what you're going to hear is not going to be disputed." (Trial Transcript p. 75). He then proceeded to explain what he believed witnesses would testify to and the crime scene investigation would show: Banks went to the victim's...
To continue reading
Request your trial
-
Bradbury v. State
... ... Jones v. Barnes , 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). See also Banks v. State , 884 N.E.2d 362, 368 (Ind. Ct. App. 2008) (holding that counsel's concession that defendant was guilty of one of several charged offenses, ... ...
-
Bradbury v. State
... ... Jones v. Barnes , 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). See also Banks v. State , 884 N.E.2d 362, 368 (Ind. Ct. App. 2008) (holding that counsel's concession that defendant was guilty of one of several charged offenses, ... ...
-
Hall v. State
... ... See Banks v. State, 884 N.E.2d 362, 368 (Ind .Ct.App.2008) (citing Holman, 314 F.3d at 83940 (concluding that two-part Strickland analysis, not Cronic's ... ...
-
Conder v. State
... ... 55. 3. No citation is given for this case on appeal, and neither party cites a Miller case in their appellate briefs. 4. Conder cites Banks v. State, 884 N.E.2d 362 (Ind.Ct.App.2008), trans. denied, in support of his argument that Attorney Baratz was deficient. However, Banks is ... ...