Coleman v. State

• Decision Date: 24 April 1998
• Docket Number: No. 49S00-9302-CR-253,49S00-9302-CR-253
• Parties: Robert C. COLEMAN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Supreme Court

Page 269

694 N.E.2d 269

Robert C. COLEMAN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 49S00-9302-CR-253.

Supreme Court of Indiana.

April 24, 1998.

Howard Howe, Indianapolis, for defendant-appellant.

Jeffrey A. Modisett, Attorney General, Randi F. Elfenbaum, Deputy Attorney General, Indianapolis, for plaintiff-appellee.

SELBY, Justice.

Appellant Robert C. Coleman executed a waiver of his right to trial by jury. He was tried before the court and found guilty of Murder, IND.CODE § 35-42-1-1 (Supp.1991), and Carrying a Handgun Without a License, a Class D Felony, IND.CODE § 35-47-2-1 and 23(c) (1988). The trial court sentenced Coleman to sixty years for Murder and one and This appeal was originally docketed in this Court in 1993. Coleman then sought a remand to the trial court to pursue a petition for post-conviction relief. We granted this request and terminated the appeal pursuant to Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977). See also Hatton v. State, 626 N.E.2d 442 (Ind.1993). After a hearing, the trial court denied Coleman's petition for post-conviction relief. Coleman then initiated this appeal. By order, we granted Coleman leave to present both the issues that would have been addressed in the original appeal and those arising from the post-conviction proceeding.

one-half years for Carrying a Handgun Without a License, sentences to run concurrently.

Appellant raises the following issues: 1) Was Appellant denied his Sixth Amendment right to effective assistance of counsel? 2) Did the trial court commit reversible error when excluding evidence of specific instances of the victim's violent conduct and was counsel ineffective for failing to make an offer of proof of those specific instances? 3) Did the judge pro tempore lack authority to accept Appellant's jury trial waiver and was that waiver invalid? 4) Was the evidence insufficient to support the conviction of Murder? and 5) Is the sentence manifestly unreasonable? We answer these questions negatively, and affirm.

FACTS

The evidence viewed in the light most favorable to the judgment shows that Appellant shot and killed his long-time friend, William House, in the early morning hours of August 22, 1991.

At approximately 3:00 a.m., House drove to the home of his cousin, Diaryl Hoskins, and asked Hoskins to ride around with him in a white Camaro that House had borrowed. The two men drove to a local night club. As they approached, Hoskins noticed that Appellant was standing outside. Knowing that House and Appellant were good friends, Hoskins pointed out Appellant to House. House pulled the car over, and got out to speak to Appellant. Appellant and House argued; then House got back into the car, and he and Hoskins left the area.

A few minutes later, House noticed that Appellant was following him in his car. House pulled over and got out of the car. Appellant pulled up next to the Camaro, got out of his car, and the two rehashed their earlier argument. Hoskins told House that he wanted to get going, and House got back into the Camaro. Appellant then approached the Camaro, pulled out a handgun and fired two shots in House's direction. The first shot ricocheted off the ground and hit the car door, the second shot hit House in the side of the chest, below his left armpit. House put the car in gear and accelerated, then apparently lost consciousness. Hoskins managed to stop the car. With the help of some bystanders, Hoskins moved House into the passenger seat and drove to Methodist Hospital, where doctors pronounced House dead on arrival.

Appellant took the stand in his own defense and testified that he shot the gun in House's direction to cover himself while he retreated behind his car. He stated that he believed House had a gun, and he shot only after he saw House make a move for the gun.

DISCUSSION

I. Effective Assistance of Counsel

We evaluate claims concerning denial of the Sixth Amendment right to effective assistance of counsel using the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Yerden v. State, 682 N.E.2d 1283, 1286 (Ind.1997). First, the appellant must show that his attorney's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-91, 104 S.Ct. at 2064-67. Second, the appellant must show that the deficiencies in the attorney's performance were prejudicial to the defense. Id. at 691-96, 104 S.Ct. at 2066-69. Prejudice exists when the conviction or sentence resulted from a breakdown in the adversarial process that rendered the result of the proceeding fundamentally unfair or unreliable. Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993). We presume that the attorney's performance has met the objective standard of reasonableness; to prevail, the appellant must rebut this presumption with strong and convincing Appellant sought permission to terminate his direct appeal to pursue post-conviction remedies for the alleged violation of his Sixth Amendment rights, and to develop a record for review of those claims. The post-conviction court expressly limited its decision to Appellant's ineffectiveness claims. On appeal from denial of post-conviction relief, the appellant must show 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). 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. Id. at 1119-20.

evidence. Barany v. State, 658 N.E.2d 60, 65 (Ind.1995). Evidence of isolated poor strategy, inexperience or bad tactics will not support a claim of ineffective assistance. Clark v. State, 668 N.E.2d 1206, 1211 (Ind.1996), cert. denied --- U.S. ----, 117 S.Ct. 1438, 137 L.Ed.2d 545 (1997).

A. Alleged Conflict of Interest

Appellant first claims that his trial attorney was ineffective because he represented Appellant under a conflict of interest. The Sixth Amendment guarantees that the accused be represented not only by counsel satisfying at least a minimum standard of professional competency but also by counsel whose undivided loyalties lie with his client. Holloway v. Arkansas, 435 U.S. 475, 481-82, 98 S.Ct. 1173, 1177-78, 55 L.Ed.2d 426 (1978); Williams v. State, 525 N.E.2d 1238, 1240 (Ind.1988). To establish a conflict of interest amounting to a Sixth Amendment violation, Appellant must show that counsel actively represented conflicting interests that adversely affected his performance. The mere possibility of a conflict of interest is insufficient to justify reversal of a conviction. Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980); Williams, 525 N.E.2d at 1240.

Appellant's attorney, Timothy Bookwalter, was a candidate for the office of Indiana Attorney General at the time of Appellant's trial. Appellant claims that Bookwalter put his interest in winning the election above Appellant's interest in a zealous defense. According to Appellant, his attorney's divided loyalty harmed him in the following respects: (1) counsel recommended that Appellant waive his right to a jury trial so that the trial would proceed faster and with less publicity; (2) counsel put campaign obligations above trial preparation; and (3) counsel, who was effectively running for the position of State prosecutor, did not zealously defend Appellant so as not to appear soft on crime.

In the post-conviction proceedings, attorney Bookwalter testified that Appellant's trial was in mid-September and he did not begin campaigning full-time until October; that during September, he campaigned only on evenings and weekends; and that the campaign had no impact on his representation of Appellant at the trial. He further testified that he recommended that Appellant waive his right to a jury trial because, based on his experience and the particular facts of this case, he thought Appellant had a better chance being tried by the judge than by a panel of twelve ordinary citizens. Finally, he stated that he was proud of being a defense attorney and did not believe that representing Appellant was a liability to his campaign.

The post-conviction court found that counsel did not neglect Appellant's case in favor of his campaign, and that counsel had adequate strategic reasons for recommending a jury waiver and for conducting the trial as he did. The evidence does not lead unerringly and unmistakably to the opposite conclusion; thus, we will not disturb the post-conviction court's decision on appeal. ¹

B. Alleged Failure to Investigate and Prepare for Trial

Appellant argues his trial attorney failed to investigate the case and consult with Appellant before and during trial; failed to take any depositions or interview witnesses; failed to develop and argue possible defenses; and failed to prepare for final argument.

As stated above, we will not find counsel's assistance ineffective absent a showing that due to counsel's alleged errors, the result of the proceeding has been rendered unfair or unreliable. Allegations that counsel failed adequately to consult with the appellant or failed to investigate issues and interview witnesses do not amount to ineffective assistance absent a showing of what additional information may have been garnered from further consultation or investigation and how that additional information would have aided in the preparation of the case. Brown v. State, 691 N.E.2d 438, 446-47 (Ind.1998).

Appellant apparently asserts that if his attorney consulted with him more frequently, reviewed the evidence with him and interviewed witnesses, he would have developed additional evidence to support his self-defense claim, ² or to support the claim that his conduct amounted to a lesser included offense of...