Curry v. State

• Decision Date: 08 December 1994
• Docket Number: No. 53A01-9312-PC-387,53A01-9312-PC-387
• Citation: 643 N.E.2d 963
• Parties: Arthur CURRY, Appellant-Defendant Below, v. STATE of Indiana, Appellee-Plaintiff Below.
• Court: Indiana Appellate Court

Page 963

643 N.E.2d 963

Arthur CURRY, Appellant-Defendant Below, v. STATE of Indiana, Appellee-Plaintiff Below.

No. 53A01-9312-PC-387.

Court of Appeals of Indiana First District.

Dec. 8, 1994.

Rehearing Denied Feb. 23, 1995.

Transfer Denied May 3, 1995.

Arthur Curry, pro se.

Pamela Carter, Atty. Gen., Suzanne Weber Lupton, Deputy Atty. Gen., Indianapolis, for appellee.

OPINION

ROBERTSON, Judge.

Arthur Curry appeals the denial of his petition for post-conviction relief. We affirm the ruling on the petition for post-conviction relief but remand with instructions that the confinement conviction be vacated.

On the early afternoon of March 15, 1989, Curry approached Gayle Cook as she was standing at the street folding blankets stored in the trunk of her car and abducted her by force. Curry pushed Cook onto the floor on the front passenger's side of a blue Toyota Corolla he had stolen, bound, gagged and blindfolded her with strips of duct tape, and transported her to a van he had parked nearby.

Before Curry moved Cook to the van, Cook tried to buy her freedom by offering to obtain gold for Curry from the bank. Cook learned from her conversations with Curry that Curry intended to contact her husband with demands for a ransom. The Cooks own their own business and had been identified by a national magazine as being among the wealthiest people in the nation. Cook encouraged Curry to contact her husband because she wanted law enforcement authorities to begin looking for her as quickly as possible.

Despite her efforts, Cook remained bound to a captain's chair in Curry's van for a period of approximately twenty-six hours. Curry moved the van from place to place and left it frequently. At some point, Curry acquiesced in Cook's requests for an opportunity to relieve herself and bought Cook a diaper.

As part of his carefully orchestrated plan, Curry contacted William Cook to arrange delivery of the money and gold. William Cook insisted on talking to his wife. Curry moved the van to a phone with a cord long enough to reach into the van and moved Cook down on the floor with her head in the opening between the front passenger seat and the door, so that she could speak into the phone. The Federal Bureau of Investigation agents identified the van during the phone conversation and followed it to the west side of town. There, in the parking lot of a shopping center, the agents stopped the van, arrested Curry and freed Cook.

Curry was convicted of kidnapping for ransom, a class A felony; criminal confinement, a class D felony; assault, a class B misdemeanor; and auto theft, a class D felony. He received an aggregate sentence of thirty- two years and ninety days, the sentence on the criminal confinement conviction to be served concurrently with the sentence on the kidnapping conviction. Although the court appointed counsel to pursue a direct appeal for Curry, at his own request, Curry brings this appeal of his post-conviction petition pro se. Most of Curry's allegations of error concern claims of ineffective assistance of counsel. However, he also maintains that his decision not to testify was coerced by threats from his attorneys that the attorneys would withdraw and that the post-conviction court committed reversible error in denying his request for the appointment of counsel once his post-conviction petition had been denied.

In a post-conviction proceeding, the post-conviction court is the sole judge of the weight of the evidence and the credibility of the witnesses. Murphy v. State (1985), Ind., 477 N.E.2d 266, 268. When reviewing the denial of post-conviction relief, we will reverse only when the evidence is without conflict and leads solely to a result different from that reached by the trial court. Id.

I.

The benchmark for judging any claim of ineffectiveness must be whether counsel's performance so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674. Claims of ineffective assistance of counsel are judged under a standard which asks whether a defendant received "reasonably effective assistance." Judicial scrutiny of counsel's performance is highly deferential and should not be exercised through the distortions of hindsight. We do not second-guess counsel's choice of strategy. Where it appears that counsel exercised professional judgment, we will not find grounds for reversal. This is true even though a petitioner may disagree with a particular choice and even though, in retrospect, one might speculate as to the wisdom of that choice over a different one. Seaton v. State (1985), Ind., 478 N.E.2d 51, 54.

The petitioner must show that his counsel has failed to meet the proper standard for attorney performance which is that of reasonably effective assistance. Id. Counsel is presumed competent, and appellant must present strong and convincing evidence to rebut the presumption. Burr v. State (1986), Ind., 492 N.E.2d 306, 308 (citing Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674). The performance inquiry asks whether counsel's assistance was reasonable considering all the circumstances. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

Analysis of an ineffective assistance of counsel claim also involves a prejudice component: even if a defendant shows that particular errors of counsel were unreasonable, if the error had no adverse effect upon the defense, it does not warrant reversal. Id. at 694, 104 S.Ct. at 2068. The court making the prejudice inquiry must ask if the petitioner has met the burden of showing that the decision reached would reasonably likely have been different absent the error. Id. at 697, 104 S.Ct. at 2069-70. In making this determination, a court must consider the totality of the evidence before the fact-finder. Id. at 696, 104 S.Ct. at 2069.

Curry's first allegation of ineffective assistance concerns counsel's decision to argue to the jury the inference, from the lack of evidence including the absence of physical evidence, that Cook had never worn an adult diaper. Curry maintains that he had informed both of his attorneys on several occasions that Cook had insisted that he purchase adult diapers for her, that he had in fact done so, that the diapers were of the step-in variety and that therefore Cook had to be lying when she testified that her feet had been continuously bound during the kidnapping. Curry insists that, in arguing to the jury that there never had been a diaper, his attorney based his entire defense upon a deliberate lie, a strategy which violated the Professional Rules of Conduct and was suicidal in light of the other evidence.

Attorney Saint testified at the hearing on Curry's post-conviction petition that over the course of the months leading up to trial Curry gave various accounts of what had transpired to his attorneys, both orally and in writing. Curry's accounts ranged from knowing Cook intimately and having conspired with her to a complete admission that was fairly consistent with law enforcement reports and Cook's own accounts. According to Saint, as the trial approached, Curry settled upon a version of the events in which he admitted that he knew Cook, that he had worked his way into her home after he had been rebuffed by William Cook's attorney, that he had found Cook to be a very lonely person and had worked upon that to gain her cooperation. On the day of the kidnapping, she could not go through with their plan. He then forcibly pushed her into the car against her will. However, during the period Cook was with Curry, she was never really bound or held prisoner. Hence, defense counsel premised Curry's defense upon one of Curry's own versions of the events: that Cook had not been held hostage, and there had not in fact been any diaper.

Attorney Saint testified that he and his co-counsel talked with Curry about the diaper. After having received discovery from the State, Saint began to feel that Curry's best defense was to point out to the jury the various inconsistencies in Cook's account of how the incident had happened as those inconsistencies related to the physical evidence and the testimony of other witnesses. Saint told the post-conviction court that he had had two poster boards filled with approximately twenty-some inconsistencies, among them the evidence related to the diaper, and that he had worked through these inconsistencies "for months and months" in advance of trial. He made the final decision to argue that there never was a diaper at trial, as the State's evidence came in. In Saint's opinion, the best strategy at that time was to take the position that there was a total lack of evidence from anyone other than Cook and Sergeant Allcron, who purportedly had destroyed the diaper, that a diaper had ever existed. Again, the goal was to "challenge the sufficiency of the evidence vis-a-vis the burden of proof on the state through the credibility of Gayle Cook." To argue that there had been a step-in diaper would have been inconsistent with Curry's most recent version of the events and the one the defense was presenting to the jury, that Cook had not been held hostage.

Saint's testimony is supported by the portions of the trial record placed into evidence at the post-conviction hearing. He pointed out numerous inconsistencies to the jury in an effort to demonstrate that Cook was incredible and the State had failed to meet its burden of proof. The evidence does not lead unerringly to a result different from that reached by the post-conviction court; the decision to argue that there never had been a diaper was shown to be a matter of trial strategy which, even if ultimately detrimental to the defendant, does not establish ineffective assistance of counsel. Garrett v. State (1992), Ind., 602 N.E.2d 139, 142.

Curry argues that effective trial counsel would have...