Davis v. State

• Decision Date: 31 December 1996
• Docket Number: No. 50S00-9008-PD-539,50S00-9008-PD-539
• Citation: 675 N.E.2d 1097
• Parties: Frank DAVIS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 1097

675 N.E.2d 1097

Frank DAVIS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 50S00-9008-PD-539.

Supreme Court of Indiana.

Dec. 31, 1996.

Susan K. Carpenter, Kenneth L. Bird, Ann M. Pfarr, Eric K. Koselke, Indianapolis, for appellant.

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

SHEPARD, Chief Justice.

I. Introduction

In his post-conviction appeal, appellant Frank R. Davis alleges that ineffective assistance of counsel prompted him to plead guilty to two counts of murder and two counts of attempted murder. He also alleges his guilty plea was not intelligent or voluntary. The post-conviction court held otherwise, and we affirm.

II. Statement of the Facts

Davis was arrested following separate assaults on four teenaged boys in northern Indiana over a six-month period in 1983. The State's evidence showed that he molested and attempted to murder one fifteen-year-old boy by hitting him repeatedly in the head with a handgun in January 1983. Six months later, he molested another teenage boy before choking him to death. Two days after that, he befriended two more teenaged boys who were camping. He forced one youth who had been sleeping outside the tent to accompany him to a set of nearby railroad tracks. Along the tracks, he molested the boy and strangled him with a piece of wire. Davis returned to the campsite and told the other youth his friend had been hurt. The youth followed Davis back to the railroad tracks where Davis, at knife point, tied the youth's hands with wire and performed oral sex on him. Then he told the boy to roll over onto his stomach and hit him in the head with an axe four times. The youth lost consciousness but survived to tell police later that a man named Frank Davis had harmed him. Davis was arrested on June 21, 1983 and told police about his involvement in all four crimes.

On July 13, 1983, the State charged Davis with ten criminal counts, and asked for the death penalty. Davis initially planned an insanity defense, but "thirty seconds" before the trial started his defense counsel withdrew the insanity defense. That decision left him without any defense at all. The next day Davis told his lawyer he wished to plead guilty. As part of an agreement, he pled guilty to two counts of murder ¹ and two counts of attempted murder, a class A felony. ²

Twelve days later, the trial court sentenced Davis to death for murder and imposed two consecutive fifty-year sentences for the attempted murder convictions. On direct appeal, we affirmed. Davis v. State, 477 N.E.2d 889 (Ind.1985), cert. denied, 474 U.S. 1014, 106 S.Ct. 546, 88 L.Ed.2d 475. In early 1986 Davis filed a petition for post-conviction relief. The State disputed the allegations in the motion and argued he should have sought relief on direct appeal. After two amendments to Davis' petition, the trial court opened a postconviction relief hearing on November 10, 1993.

The hearing terminated when the court approved a Joint Motion for Equitable Relief. Under its terms, the post-conviction court vacated Davis' death sentence but not the two fifty-year sentences. It determined that the sentencing hearing would be reopened "for the sole purpose of entering additional mitigating evidence. There are no restrictions on the penalties that may be given." (R. at 278.) ³ The only issue remaining was Davis' request to withdraw his guilty plea, which the post-conviction court denied.

III. Statement of the Issues

Davis advances two arguments in support of his request to withdraw his guilty plea.

First, Davis argues his lawyer rendered ineffective assistance by forcing him to forego a jury trial and waive his constitutional rights in exchange for a plea agreement that gave him no real benefit. Specifically, he argues his counsel lacked the experience to handle a death penalty case, allowed an incompetent defendant to plead guilty, failed to suppress statements and the fruits of an illegal search of the Davis family home, failed to prepare and present an insanity defense, and allowed Davis to plead guilty without the requisite intent. Finally, Davis argues his counsel failed to advise him on the aggravating circumstances and failed to voir dire the jurors properly.

Second, Davis argues that his plea was not voluntary and intelligent. In particular, Davis alleges his plea was invalid because during the plea hearing he denied an intent to kill until after an off-the-record conference, received incorrect advice about the aggravating circumstance that would apply to the case, pled guilty to what the defense called an "illusory plea," and was not properly informed about the role of the jury in evaluating the appropriateness of the death penalty. Finally, Davis alleges he was not sufficiently competent to enter a guilty plea.

IV. Ineffective Assistance of Counsel

In reviewing the denial of a petition for post-conviction relief, we do not reweigh evidence or judge the credibility of the witnesses. To prevail, a petitioner must establish that the evidence as a whole leads unmistakably to a decision in his favor. Schiro v. State, 479 N.E.2d 556 (Ind.1985), cert. denied, 475 U.S. 1036, 106 S.Ct. 1247, 89 L.Ed.2d 355 (1986).

Defendants who challenge the quality of their legal defense face a demanding two-part test. First, the defendant must show that the attorney's performance fell below an objective standard. Second, the defendant must show the attorney's performance was so deficient and prejudicial that the defendant was denied a fair trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Whatley v. State, 508 N.E.2d 537 (Ind.1987). Indiana courts have required strong and convincing evidence to overcome the presumption of effective defense counsel. Terry v. State, 465 N.E.2d 1085, 1089 (Ind.1984). "Isolated poor strategy, bad tactics, a mistake, carelessness or inexperience do not necessarily amount to ineffective counsel unless, taken as a whole, the defense was inadequate." Id., citing Hollon v. State, 272 Ind. 439, 398 N.E.2d 1273 (Ind.1980).

Davis' lead attorney, George Hofer, had just two years experience, but he had worked as both a deputy prosecutor and a public defender. Hofer had only slim experience with jury trials, none of them a capital case, but he was aided by an experienced co-counsel, Jere Humphrey. Humphrey, who assisted with jury selection, had handled several capital cases. Hofer was also astute enough to argue that the charged aggravator of lying-in-wait did not apply to Davis' case. This Court later agreed with Hofer and held that the trial court erred when it found the lying-in-wait aggravator was supported by the evidence. Davis, 477 N.E.2d at 897. As the post-conviction court noted, "viewing the case as a whole, the Trial Counsel were competent." (R. at 269.)

Hofer conceded at the post-conviction hearing that he was "overwhelmed" by the case. Much of his anxiety appeared to have stemmed from the Davis' failure to cooperate with his defense, however, rather than from his inability to handle the legal issues involved.

At the post-conviction hearing, Hofer acknowledged that even with the experience he had gained since Davis' original trial, he did not believe he could have been able to obtain Davis' cooperation. Hofer recalled Davis' answering his lawyers' questions with statements such as "Well, you find out" or "you get the answer" or "that's your job." (R. at 433.) Ultimately, it was the defendant's behavior, not his counsel's representation, that hampered the defense. It is hard to see, therefore, how the attorney's conduct fell below prevailing standards required by Strickland.

Davis also argues he was denied effective assistance of counsel because his lawyer allowed him to plead guilty even though he was incompetent. Testimony obtained four years after the conviction showed Davis suffered brain damage during birth that caused his right brain to function less effectively than his left. As a result of this injury and the odd behavior it produced, he was placed in Beatty Hospital at age fourteen. During his time at Beatty, testimony showed he was placed in an adult ward where he was sodomized and abused for his entire one-year commitment. Due to this traumatic abuse, a physician testified, Davis suffered from post-traumatic stress disorder, borderline personality disorder, and major features of anti- social personality disorder. (R. at 658.) As a result of these problems, a physician testified, a criminal defendant might have trouble cooperating with his counsel.

This evidence contradicts, however, the evidence available to Davis' trial counsel. According to the guilty plea record, psychiatric examinations had found Davis competent (G.R. 637-38,653-54), and even Humphrey thought Davis was competent to stand trial. (R. at 728). Faced with this evidence, Hofer and Humphrey opted to drop the insanity defense just before the trial started. Under the Strickland standard, counsel's decision to allow Davis to plead, especially in light of the evidence, appears reasonable.

Davis also argues that because of the ineffective work of his counsel, there was no attempt to suppress evidence of his statement to police. With respect to the suppression of Davis' admission he committed the crimes, counsel testified that he believed the State had promised to forego the death penalty charge in exchange for Davis' confession. (R. at 329.) Counsel also said the deputy prosecutor trying the case told him there was no such promise. Despite the conflict in evidence, trial counsel did not ask the county prosecutor to testify at the suppression hearing. The contradictory statements about the link between the death penalty and the confession, however, shows that the record does not inevitably lead to the conclusion that such a promise existed. Even if counsel raised this issue during the suppression...