Canaan v. State

• Decision Date: 23 June 1997
• Docket Number: No. 82S00-9012-PD-816,82S00-9012-PD-816
• Citation: 683 N.E.2d 227
• Parties: Keith B. CANAAN, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
• Court: Indiana Supreme Court

Page 227

683 N.E.2d 227

Keith B. CANAAN, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).

No. 82S00-9012-PD-816.

Supreme Court of Indiana.

June 23, 1997.

Rehearing Denied Sept. 25, 1997.

Susan K. Carpenter, Public Defender, Steven H. Schutte, Deputy Public Defender, Lisa Malmer, Deputy Public Defender, Michael C. Keating, Special Assistant, Glenn A. Grampp, Special Assistant, Indianapolis, for appellant.

Pamela Carter, Attorney General, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, for appellee.

SULLIVAN, Justice.

Petitioner Keith B. Canaan appeals the denial of post-conviction relief with respect to his convictions for murder, burglary, and attempted criminal deviate conduct and his sentence of death. We earlier affirmed Canaan's direct appeal of these convictions and sentence. Canaan v. State, 541 N.E.2d 894 (Ind.1989). Our earlier opinion contains a description of the crimes of which Canaan was convicted. Id. We affirm the denial of post-conviction relief.

Discussion

At the trial on his petition for post-conviction relief, Canaan had the burden of establishing his grounds for relief. Ind Post-Conviction Rule 1(5). Therefore, he is now appealing from a negative judgment. When an appeal is from a negative judgment, a court on review must be convinced that the evidence as a whole was such that it leads unerringly and unmistakably to a decision opposite that reached by the trial court. Spranger v. State, 650 N.E.2d 1117, 1119 (Ind.1995); Williams v. State, 508 N.E.2d 1264, 1265 (Ind.1987); Lowe v. State, 455 N.E.2d 1126, 1128 (Ind.1983). It is only where the evidence is without conflict and leads to but one conclusion, and the trial court has reached the opposite conclusion, that the decision will be disturbed as being contrary to law. Spranger, 650 N.E.2d at 1119 (quoting Fleenor v. State, 622 N.E.2d 140, 142 (Ind.1993), cert. denied, 513 U.S. 999, 115 S.Ct. 507, 130 L.Ed.2d 415 (1994)).

Several of Canaan's claims for post-conviction relief are grounded in his contention that he did not receive the minimum level of effective assistance from his trial counsel that the Constitution requires. We analyze such claims according to the two-part test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See, e.g., Lowery v. State, 640 N.E.2d 1031, 1041 (Ind.1994), cert. denied, --- U.S. ----, 116 S.Ct. 525, 133 L.Ed.2d 432 (1995). First, we require the defendant or petitioner to show that, in light of all the circumstances, the identified acts or omissions of counsel were outside the wide range of professionally competent assistance. Id. This showing is made by demonstrating that counsel's performance was unreasonable under prevailing professional norms. Id. (citing Turner v. State, 580 N.E.2d 665, 668 (Ind.1991)). Second, we require the defendant or petitioner to show adverse prejudice as a result of the deficient performance. This showing is made by demonstrating that counsel's performance was so prejudicial that it deprived the defendant or petitioner of a fair trial. Lowery, 640 N.E.2d at 1041. We will conclude that a fair trial has been denied when the conviction or sentence has resulted from a breakdown of the adversarial process that rendered the result unreliable. Id. (citing Best v. State, 566 N.E.2d 1027, 1031 (Ind.1991)).

I

Canaan contends that he was denied the effective assistance of counsel to which he was entitled when counsel (a) refused to call Canaan as a witness; (b) decided to try the habitual offender count prior to the penalty phase; (c) failed to object to the introduction into evidence of items seized from Canaan's bedroom; (d) failed to object to empaneling a jury drawn from an adjoining county; and (e) failed to present evidence in mitigation of the sentence, where counsel allegedly had done no preparation for the penalty phase of Canaan's trial.

A

Canaan contends that he is entitled to post-conviction relief because his trial counsel did not call him to testify. In this appeal, Canaan abandons the argument he made at his post-conviction trial that counsel was ineffective for not calling him to testify at trial ¹ but continues to argue that counsel was ineffective for not calling him as a witness at the penalty phase for two reasons. First, Canaan contends, the risk he faced during the guilt phase of being impeached by his prior criminal record no longer existed as, prior to the penalty phase commencing, his record already had been revealed in the habitual offender phase. Second, Canaan argues, had he testified at the penalty phase, he could have "filled in major gaps in the jury's knowledge regarding him."

As discussed at the outset of this opinion, our role in reviewing this appeal from a negative judgment is to determine whether undisputed evidence, subject to the post-conviction court's opportunity to judge credibility, unerringly and unmistakably leads us to an opposite conclusion. Spranger, 650 N.E.2d at 1121. The post-conviction court made certain findings of fact from which it concluded that the decision not to call Canaan as a witness at the penalty phase was proper trial strategy.

Our review of the record indicates that there was evidence to support the post-conviction court's findings of fact. Both trial counsel and co-counsel testified as to the reasons they concluded that it would not be in Canaan's interest for him to testify at the penalty phase. In particular, co-counsel testified that she feared that, if Canaan took the stand, his demeanor was such that he would appear to the jury to be cold and unsympathetic. ²

Our review of the post-conviction court's findings does not lead us to an opposite conclusion. See Ford v. State, 523 N.E.2d 742, 747 (Ind.1988); Schick v. State, 570 N.E.2d 918, 929 (Ind.Ct.App.1991), trans. denied; Luster v. State, 578 N.E.2d 740, 746 (Ind.Ct.App.1991) (each holding that counsel's recommendation that defendant not testify was a tactical choice and not ineffective assistance of counsel). ³

We affirm the post-conviction court's conclusion that Canaan has failed to demonstrate that the decision not to call Canaan as a witness during the penalty phase constituted ineffective assistance of counsel.

B

Canaan contends that he is entitled to post-conviction relief because his trial counsel decided to try the habitual offender count prior to the penalty phase of the trial. He argues that had the appropriateness of the death penalty been considered prior to the habitual offender charge, the jury would have been unaware of his prior criminal history. ⁴ In contrast, by trying the habitual offender count first, Canaan says that he was shown to be even more dangerous than the facts in the guilt phase showed; that his prior contacts with the prison system had failed to deter or reform him; and that his criminal conduct was characterized by escalating seriousness.

The post-conviction court made certain findings of fact from which it concluded that trial counsel made strategic use of the habitual offender adjudication at the penalty phase and that the decision to try the habitual offender count in advance of the penalty phase would not likely have produced a different result in the death penalty phase.

Our review of the record indicates that there was evidence to support the post-conviction court's findings of fact as to strategic use of the habitual offender adjudication. In closing argument at the death penalty phase, trial counsel asked the jury not to recommend the death sentence because Canaan's "Habitual Criminal status ... will require him to spend the rest of his life in prison." R. 2359. Like the trial court, we find no evidence that changing the order of the habitual offender and death penalty phases would have produced a different result.

Our review of the post-conviction court's findings does not lead us to an opposite conclusion. Canaan cites no cases from this or any other jurisdiction holding counsel to have been ineffective for trying the habitual or recidivist offender phase of a capital murder trial before the death penalty phase and we have found none. While Canaan advances several cogent arguments as to why this may not have been the best of strategy, judicial scrutiny of counsel's performance is highly deferential; we eschew second-guessing the propriety of trial counsel's tactics. Lowery, 640 N.E.2d at 1041.

We affirm the post-conviction court's conclusion that Canaan has failed to demonstrate that the decision to try the habitual offender count prior to the death penalty phase constituted ineffective assistance of counsel.

C

Canaan contends that he is entitled to post-conviction relief because his trial counsel did not object to the State's introduction into evidence of a pair of pants and a matchbook which were found in his bedroom at his brother's apartment. He argues that the evidence was obtained in an illegal warrantless search of the bedroom and "was more than a little damaging."

The post-conviction court made certain findings of fact from which it concluded that an objection on grounds of an illegal warrantless search to the admission of the pants and a matchbook would have been overruled.

Our review of the record indicates that there was evidence to support the post-conviction court's findings of fact. Canaan's brother testified at trial that Canaan had been staying with the brother, his wife, and their children in their three bedroom apartment and that Canaan had been staying "[u]pstairs in my little boy's room." The brother's written consent to the search is of record. There was testimony at trial consistent with the trial court's finding that Canaan had abandoned the room and fled the jurisdiction.

Our review of the post-conviction court's findings does not lead us to an opposite conclusion. While the Fourth Amendment generally prohibits the warrantless entry of a person's home to conduct a search, an exception exists...