Clark v. State

Decision Date01 November 1990
Docket NumberNo. 29S00-8810-CR-861,29S00-8810-CR-861
Citation561 N.E.2d 759
PartiesMichael Lee CLARK, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

David F. Tudor, F. Keith Leach, Noblesville, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Following a jury trial, appellant Michael Lee Clark was convicted of driving while suspended, I.C. 9-1-4-52, a Class A misdemeanor; operating while intoxicated, I.C. 9-11-2-2, a Class A misdemeanor; and operating with a .10% blood alcohol level, I.C. 9-11-2-1, a Class C misdemeanor. After the jury had returned these verdicts on the misdemeanor counts, a second phase of this trial ensued and culminated in the elevation of appellant's conviction to a Class D felony, I.C. 9-11-2-3, which provides that a person who violates section one or two of this chapter commits a Class D felony if he has a previous conviction of operating while intoxicated and that previous conviction occurred within the last five years. Appellant had been convicted for operating while intoxicated on May 19, 1983, and December 17, 1985. Appellant received a one-year sentence for driving while suspended and a two-year sentence for operating while intoxicated, which was enhanced an additional two years for aggravating circumstances. The trial court ordered these sentences to run consecutively. At a third phase of this trial, Clark's sentence then was enhanced an additional thirty years as appellant was found to be a habitual felony offender pursuant to I.C. 35-50-2-8.

Appellant now brings this direct appeal, asserting that his convictions must be reversed because he was denied effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. Appellant also contends that his Class D felony conviction and habitual offender sentence were constitutionally infirm because the jury instructions at those phases of the proceedings were incomplete. Appellant further maintains that his habitual offender sentence should be vacated because the information upon which the State proceeded was defective. In addition, appellant contends that his sentence of thirty-five years for operating while intoxicated and driving while suspended is excessive and disproportionate under the Eighth Amendment to the United States Constitution and Article I, Sec. 16 of the Indiana Constitution and thus his sentence must be revised.

The facts adduced at trial were as follows: On November 9, 1986, Officer John R. Towle, who at that time was with the Noblesville Police Department, observed a vehicle moving slowly in an eastward direction. Officer Towle stated that as the car passed him he was able to identify the driver of the vehicle as a white male with dark hair and a moustache. Officer Towle then entered the intersection and followed the vehicle as it continued in an eastward direction on Hannibal Street. The vehicle veered to the right, running into a large pile of leaves, and then swerved back to the left to avoid a parked car. The vehicle then proceeded slowly through a four-way stop without coming to a complete stop.

Officer Towle continued to follow the vehicle as it entered the well lighted Village Pantry parking lot. At this time, Officer Towle noticed there were several other people in the vehicle. He stated that there was a male and a female in the back seat and that the driver of the vehicle looked outside the window back at his vehicle. Officer Towle identified appellant as the driver of the vehicle. Officer Towle then made a U-turn and called for back-up assistance and proceeded into the Village Pantry parking lot. Officer Towle testified that, other than for a few seconds when he was making his U-turn, he kept his eyes on the vehicle the entire time and he saw no one exit the car.

Officer Towle approached the vehicle and asked appellant, who was seated behind the wheel of the vehicle, for his driver's license and vehicle registration. A female in the passenger's seat of the vehicle produced the registration. Officer Towle, having noticed an odor of alcohol emanating from inside the vehicle, asked appellant to step outside of the car. Officer Towle stated that he noticed that appellant's eyes were bloodshot, red and watery and that his face was flushed. Appellant also appeared to be having trouble keeping his balance when he walked. Officer Towle then asked appellant to perform a field sobriety test. Appellant failed to touch his nose in the finger-to-nose test and his balance was off in the heel-to-toe test.

Officer Towle, reading from an implied consent card, then informed appellant he had probable cause to believe appellant had operated a vehicle while intoxicated, and he asked appellant if he was willing to submit to a chemical test. Appellant stated that he would. The results of the Intoxilyzer test showed appellant's blood alcohol content to be .13%. Officer Towle stated that it was his opinion that appellant was intoxicated and not fit to operate a vehicle at that time.

Appellant, however, testified at trial that Julie Hart was driving the vehicle when it pulled into the Village Pantry. Appellant maintained that both he and Julie got out of the vehicle at the Village Pantry. Julie went inside the store to have the gas pumps turned on, at which time appellant noticed that Officer Towle was approaching and he thus leaned inside the car to tell Greg and Sandy Newby to straighten up. Appellant stated that Officer Towle asked to see his driver's license, and he replied that he did not have one. According to appellant, Officer Towle then ordered appellant to get inside the car and he demanded to see a vehicle registration. Holly Perkins, who saw appellant, Julie Hart, and Greg and Sandy Newby at the Club Bar that evening, corroborated certain portions of appellant's testimony. She testified that when the four left the Club Bar, the vehicle's last stop before the Village Pantry, Julie Hart was driving the car.

Appellant asserts that his convictions must be reversed because he was denied effective assistance of counsel in violation of his Sixth and Fourteenth Amendment rights. Appellant provides a lengthy list of alleged errors and omissions that he claims were made by his trial counsel which, according to appellant, had the cumulative effect of denying him effective assistance of counsel. The United States Supreme Court has established a two-part standard by which claims of ineffective assistance of counsel are evaluated. Preliminarily, appellant must make a showing that the performance of his trial counsel was deficient. Appellant then must show that he suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This Court has stated that judicial scrutiny of counsel's performance is highly deferential and should not be exercised through distortions of hindsight. Counsel is presumed competent, and appellant must present strong and convincing evidence to rebut the presumption. Duncan v. State (1987), Ind., 514 N.E.2d 1252. We will address appellant's allegations of alleged incompetence to determine whether they amount, individually or collectively, to ineffective assistance of counsel.

Appellant contends that trial counsel erred when he failed to challenge the sufficiency of the probable cause leading to the initial stop. However, Officer Towle's testimony as to the path travelled by the vehicle is uncontroverted. He stated that the vehicle ran over a large pile of leaves, swerved to avoid a parked car, and ran a four-way stop. This uncontroverted evidence constituted probable cause for a stop. Thus, appellant's trial counsel was justified in not objecting to the sufficiency of the probable cause.

Appellant states that trial counsel erred in failing to admit certain medical records pertaining to an eye condition that afflicted Officer Towle. On cross-examination, however, trial counsel did question Officer Towle with respect to the substance of the medical records. Trial counsel's actions with respect to this issue cannot be said to have fallen below an objective standard of reasonable representation.

Appellant asserts that trial counsel erred when he failed to effectively suppress a breathalyzer test or even object to the admission of the test as evidence. A review of the trial record, however, shows that the State established that Officer Towle had successfully completed the forty-hour course instructed by the State Department of Intoxicology allowing one to become a breath test or chemical test operator. Officer Towle also testified that he properly administered the test in this instance. Given this foundation laid by the State, counsel cannot be faulted for failing to supress this breathalyzer test. With respect to appellant's allegation that counsel erred in failing to object to the admission of the breathalyzer test, appellant is required to demonstrate that a proper objection would have been sustained by the trial court. Absent such a showing, appellant cannot prevail on an ineffective assistance of counsel claim. Grigsby v. State (1987), Ind., 503 N.E.2d 394. Appellant has made no attempt to establish that such an objection would have been sustained by the trial court.

Appellant next contends that trial counsel erred in failing to object to the admission of certain exhibits because, according to appellant, the exhibits were not properly certified and thus were inadmissible. Specifically, appellant is referring to State's Exhibits Nos. 5, 10, 11, and 16. A review of the record, however, reveals that the State laid a proper foundation for the admission of each of these exhibits and they were properly certified. Exhibit 5, appellant's driving record, was introduced along with a certification letter signed by the Commissioner's duly authorized representative. Exhibit 10, the Officer's Arrest Report, bears an Indianapolis...

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