Carter v. State

• Decision Date: 16 November 2000
• Docket Number: No. 49S00-9701-CR-23.,49S00-9701-CR-23.
• Parties: Jeffrey V. CARTER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

738 N.E.2d 665

Jeffrey V. CARTER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 49S00-9701-CR-23.

Supreme Court of Indiana.

November 16, 2000.

Hillary Bowe Oakes, Indianapolis, IN, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. SULLIVAN, Justice.

Defendant Jeffrey Carter was convicted of attempted murder and a handgun violation following a melee in a "strip club." We affirm, finding among other things that medical records obtained after trial would not have produced a different result; that claims of prosecutorial misconduct during closing argument were waived for failure to object; and that what Carter claims were mistakes by counsel were either not mistakes at all or the result of reasonable strategic decisions.

We have jurisdiction over this appeal because the longest single sentence exceeds 50 years. Ind. Const. art. VII, § 4; Ind. Appellate Rule 4(A)(7).

Background

The facts most favorable to the verdict show that Carter and several friends patronized an Indianapolis "strip club" on February 9, 1995. Carter and his friends got into a series of arguments with several of the dancers. One of the club's bouncers, Michael Jackson, came over to the table. Carter then began to argue with Jackson. Kenton "Boo" Tarvin, who was another bouncer and also a friend of Carter's, came to the table to calm the situation. Tarvin failed to do so and Jackson told Tarvin that Carter and his friends were not welcome. Tarvin asked them to leave. The group initially complied peacefully, but according to several witnesses Carter drew a gun and fired as he was exiting the club. Bullets struck Tarvin in the lower abdomen and Jackson in the buttocks. Tarvin was severely injured in the shooting while Jackson was treated and released from an Indianapolis hospital.

Carter was charged with two counts of attempted murder—one for shooting Tarvin and one for shooting Jackson—and one count of carrying a handgun without a license. He was also charged as a habitual offender. A jury convicted Carter of attempted murder for the shooting of Jackson and convicted him of the handgun charge, but acquitted Carter of the attempted murder of Tarvin. In a separate proceeding, the jury found Carter to be a habitual offender. The trial court sentenced Carter to 25 years on the attempted murder conviction, which the court enhanced by 30 years because of Carter's habitual offender status. The judge also sentenced Carter to one year for the handgun offense, to be served concurrently with his other sentence.

Carter appealed the verdicts and the habitual offender determination on several grounds, but subsequently obtained a stay of that appeal in order to pursue post-conviction relief through the procedure set out in Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977). The post-conviction court denied Carter's petition and he now seeks review of that decision as well as errors claimed in his original appeal.

Additional facts will be set forth as necessary.

Discussion

I

Because Carter's main arguments rest with those issues raised in his post-conviction petition, we will deal with them first.

A

Carter's primary contention is that two pieces of new evidence require that he be granted a new trial. First, Carter points to medical records compiled when Jackson was taken to an Indianapolis hospital and the post-conviction analysis of these records by forensic scientist Dr. John Pless. He claims that this evidence demonstrates that Jackson's wound was self-inflicted. Second, Carter argues that the testimony of one Ronald Collins at the post-conviction relief hearing requires a new trial. Collins, who was in prison at the time of the original trial and whose name was never mentioned during that trial, testified that he was in fact the shooter that night at the club.

The post-conviction court rejected these contentions and we will review the decision of that court with great deference. See Williams v. State, 724 N.E.2d 1070, 1076 (Ind.2000)

(noting that post-conviction relief procedures present a defendant with a "narrow remedy" and not a "super appeal"); Conner v. State, 711 N.E.2d 1238, 1244 (Ind.1999). In the post-conviction court, Carter stood in the shoes of a civil plaintiff and bore the burden of showing by a preponderance of evidence why his conviction should be set aside. See id.; Johnson v. State, 693 N.E.2d 941, 945 (Ind.1998). He therefore is appealing from a negative judgment on these issues and "must show that the evidence as a whole `leads unerringly and unmistakably to a conclusion opposite to that reached by the trial court.'" Williams, 724 N.E.2d at 1076 (quoting Weatherford v. State, 619 N.E.2d 915, 917 (Ind.1993)). See also Johnson, 693 N.E.2d at 945 ("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 the decision will be disturbed as being contrary to law.")

As the post-conviction court correctly noted, new evidence will mandate a new trial only when the defendant demonstrates that: (1) the evidence has been discovered since the trial; (2) it is material and relevant; (3) it is not cumulative; (4) it is not merely impeaching; (5) it is not privileged or incompetent; (6) due diligence was used to discover it in time for trial; (7) the evidence is worthy of credit; (8) it can be produced upon a retrial of the case; and (9) it will probably produce a different result at retrial. See Fox v. State, 568 N.E.2d 1006, 1007 (Ind.1991)

. This Court analyzes these nine factors with care, as "[t]he basis for newly discovered evidence should be received with great caution and the alleged new evidence carefully scrutinized." Reed v. State, 508 N.E.2d 4, 6 (Ind.1987).

As for the medical evidence, the post-conviction court found that the records and testimony did not merit a new trial because they would not lead to a different result at a retrial and thus did not meet the final element of the Fox test. This conclusion—if it was error at all—was not so obviously mistaken as to require reversal. See Williams, 724 N.E.2d at 1076

. The medical records show that a bullet slashed through Jackson's left buttock diagonally from either top to bottom or bottom to top. Carter uses these records to argue that the wound probably was suffered as Jackson attempted to draw a gun from his back waistband.¹ In this vein, Dr. Pless testified that there was a "probability—meaning greater than 51%" (R.P-C.R. at 719) that the wound was self-inflicted.² However, the State claims, and the post-conviction court held, that the jury could properly have found that the wound was suffered as Jackson dove over a nearby bar, as all parties agree he did around the time of the gunshots.³ Carter counters this argument by saying the evidence at trial shows that Jackson was shot before he jumped over the bar.

Our review finds the evidence on this point to be in conflict. Jackson's own testimony was equivocal and his memory unclear. Carter has not shown that "the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion." Johnson, 693 N.E.2d at 945. He bore the burden of proof in the post-conviction court. See id. There was evidence to support the post-conviction court's conclusion that the "probability" of a self-inflicted wound that Dr. Pless pointed to was not enough to override the facts as found by the jury.

The testimony of Ronald Collins is less problematic. The post-conviction court found that this testimony failed the Fox standard because it would likely be unavailable at a new trial and it was not worthy of credit. Collins's lack of credibility resolves the claim. Carter claims that there is nothing in the record that would undercut Collins's credibility, but that assertion fails in several respects. First, we note that the post-conviction court had the benefit of viewing Collins's face and his reactions during testimony. See State v. McCraney, 719 N.E.2d 1187, 1191 (Ind. 1999)

("Whether a witness' testimony at a postconviction hearing is worthy of credit is a factual determination to be made by the trial judge who has the opportunity to see and hear the witness testify."). Second, the post-conviction court found that Collins never came forward with his story until Carter's case reached the post-conviction stage. Finally, many of the witnesses testified at trial that Carter was with two other men, while Collins describes a party totaling five men. These facts justify the post-conviction court's distrust of Collins's credibility. As this Court noted in McCraney, "[i]t is not within an appellate court's province to replace the trial court's assessment of credibility with its own," but that is precisely what Carter asks us to do here. 719 N.E.2d at 1191.

B

Carter next claims that the prosecutor committed misconduct by not disclosing Michael Jackson's medical records during discovery. Correspondingly, he argues that these records show that the prosecutor put on perjured testimony because Michael Jackson testified that he was shot twice, while the records apparently show only one wound. We reject both of these claims of prosecutorial misconduct.

Carter argues that the medical records were withheld from him in violation of both local discovery rules and the constitutional rule of prosecutorial disclosure laid down in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). First, the local discovery rules require the prosecutor to "disclose the following material and information within its possession or control: [a]ny reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations." Marion County Crim.Div.R. 7(2)(a)(4) (emphasis added). The emphasized portion of...