Drake v. State

• Decision Date: 13 December 1990
• Docket Number: No. 48S00-8904-PC-296,48S00-8904-PC-296
• Parties: John Wayne DRAKE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1286

563 N.E.2d 1286

John Wayne DRAKE, Appellant, v. STATE of Indiana, Appellee.

No. 48S00-8904-PC-296.

Supreme Court of Indiana.

Dec. 13, 1990.

Susan K. Carpenter, Public Defender, Hope Fey, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Jane Morrison, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

This is an appeal from the denial of post-conviction relief. A jury trial in 1982 resulted in appellant's conviction of First Degree Murder for the killing of Ruth Heaton, for which he was sentenced to life imprisonment. This Court affirmed the conviction and sentence on direct appeal. Drake v. State (1984), Ind., 467 N.E.2d 686. Subsequently appellant filed a petition for post-conviction relief which was denied.

The facts are: On the morning of April 8, 1977, Ruth Heaton, a nearly-blind widow and retired teacher, was found dead in her Anderson home by a friend. The victim had been struck five blows to the head with a candelabra and strangled by means of a rope tied around her neck and then suspended from an interior doorknob. Suspicion initially centered upon Michael J. Cox, who had served as the victim's handyman. On the day of her death, he had taken her to lunch and then deposited a check drawn on her account for $11,000 into his own account. Cox was convicted in 1978 of forgery but sufficient evidence was not forthcoming at that time to file murder charges.

Appellant's brother and sister-in-law, Charles and Amy Drake, were close friends with Cox and initially also were suspected of the murder. After Charles was questioned in this regard following Cox's arrest in 1977, Charles and Amy persuaded appellant to drive them to Florida picking up appellant's then-wife Nancie along the way. The evening they arrived in Miami, they had a party at which they drank heavily, smoked marijuana, and took Quaaludes. Appellant and Nancie were divorced in 1979, and Charles and Amy began moving from state to state.

In 1980, Amy telephoned the Anderson police from her home in Ohio and told them that at the 1977 party in Miami, appellant had confessed to killing Mrs. Heaton. Police subsequently contacted Nancie in New Jersey and obtained a similar statement over the telephone. She later was hypnotized and another, purportedly verbatim statement of appellant's admissions was taken. This renewed investigation led to appellant's instant conviction as well as Cox's conviction and life sentence in 1983 upon the theory that appellant had carried out the murder in concert with Cox. We affirmed upon direct appeal, Cox v. State (1986), Ind., 493 N.E.2d 151.

Appellant contends the post-conviction court erred in finding he had not been denied the effective assistance of trial counsel. In a post-conviction relief hearing concerning competency of counsel, the petitioner has the burden to prove that counsel's representation fell below a standard of reasonableness under prevailing professional norms. He also must prove that counsel's failure was so prejudicial as to deprive him of a fair trial. To prevail on appeal, he must show the evidence leads unerringly to a conclusion opposite that reached by the post-conviction court. Smith v. State (1989), Ind., 547 N.E.2d 817.

Appellant recites nine instances of allegedly substandard performance of his trial counsel which, he maintains, collectively undermine the reliability of his trial's result.

(1) Appellant argues trial counsel was ineffective in calling as a witness Wilbur Hardacre, a friend and neighbor of the victim, who testified he had seen appellant in the victim's neighborhood with Cox a few days before the murder. Counsel called him on the spur of the moment when the State's case ended before his own witnesses were lined up and the court refused a continuance. Because the State had produced no eyewitnesses placing appellant near the murder scene, appellant argues counsel's failure to know that the witness would positively identify appellant as Cox's companion rendered his defense ineffective. Counsel testified at the post-conviction hearing that prior to trial, the witness had not been shown photographs but was unable to provide a good description of Cox's companion, and his strategy was to place Cox in the victim's neighborhood.

We agree with the post-conviction court that this was a matter of trial tactics, and while in retrospect Hardacre's testimony did not benefit the defense, it was not reasonably foreseeable that the witness's recollection would gel so dramatically upon seeing appellant in person. Moreover, in light of defense evidence that appellant had gone with Cox to buy beer on the evening of the murder, we fail to find Hardacre's testimony that they were seen together days before to be so prejudicial as to amount to ineffective assistance.

(2) Appellant argues counsel was ineffective in his cross-examination of his former wife, Nancie Ward. Counsel previously had succeeded in excluding on marital privilege grounds Ward's testimony as to telephone conversations with appellant and in limiting her testimony to statements made prior to her hypnosis. On cross-examination, counsel questioned Ward about her previously excluded statements, eliciting inculpatory admissions by appellant, and moved into evidence all of her prior statements. Counsel's purpose in so doing was to show that even her direct testimony was rendered unreliable by the hypnosis, and that the police had been overreaching in securing information from her. However, counsel's subsequent attempt to introduce the expert testimony of Dr. Eugene Levitt in order to prove unreliability was rejected by the trial court for the same reason it previously had ruled any products of the hypnosis session inadmissible. We upheld that ruling on direct appeal, finding trial counsel "was creating a straw man in the cross-examination and attempting to attack it during his case-in-chief." Drake, supra at 688.

Appellant cites United States ex rel. Barnard v. Lane (7th Cir.1987), 819 F.2d 798, 805 for the proposition that the "spectrum of counsel's legitimate tactical choices does not include abandoning a client's only defense," and maintains publishing Ward's statements amounted to a virtual abandonment of appellant's defense of not guilty. He argues that because counsel knew Dr. Levitt's testimony had been excluded at other trials, the potential prejudice from introducing all of Ward's statements far outweighed any potential benefit, and notes that in specifications 15 and 47 of his motion to correct error, counsel claimed the trial court had erred in permitting the prosecution to introduce Ward's statements. Appellant reasons this confusion reveals counsel was not pursuing any legitimate strategy.

It is apparent counsel's performance in this regard was deficient. See Messer v. State (1987), Ind.App., 509 N.E.2d 249. However, appellant fails to demonstrate, in conformance with the second prong of the Strickland test, precisely how Ward's statements damaged his defense to an extent requiring reversal. To the contrary, their significance pales next to that of the testimony of Charles and Amy Drake, in which appellant's recounting of the crime in great detail was related, while the admissions made to Ward alone involve more general admissions and inferences of guilt. They moreover are generally cumulative of Charles' and Amy's testimony, unlike the inadmissible evidence elicited by counsel in Messer. There the evidence was not cumulative and concerned the defendant's plea-bargain attempt involving an offer to give information regarding numerous other burglaries. Counsel's introduction here of Ward's statements, standing alone, does not amount to ineffective assistance.

(3) Appellant argues counsel was ineffective in failing to continually object to, and preserve in his motion to correct error the State's allegedly improper impeachment of his sister and alibi witness, Jean Crownover. Appellant lived with his sister and her family. She testified appellant and her husband had worked on a car until about nine o'clock on the night of the murder and delivered the car to its owner, after which appellant left with Cox to get some beer and then appellant had helped her husband close up his shop behind the house and had gone to bed. In order to show bias, the State brought out on cross-examination that Jean's brother (appellant), her two sons and two former husbands had served time in correctional institutions.

Counsel objected to the State's question about the witness' sons and to the one about her former husbands; each objection was overruled. Clearly, as counsel testified at the post-conviction hearing, additional objections would have been superfluous. Counsel's inclusion of this issue in his motion to correct error likewise would have been fruitless. We have upheld repeatedly the use of convictions of relatives to show the probability of a witness' bias against the State. Sweet v. State (1986), Ind., 498 N.E.2d 924, on remand, 533 N.E.2d 136; Williams v. State (1986), Ind., 492 N.E.2d 28; Clark v. State (1976), 264 Ind. 524, 348 N.E.2d 27, cert. denied, 439 U.S. 1050, 99 S.Ct. 731, 58 L.Ed.2d 711. Consequently, counsel clearly was not ineffective for failure to continually object and to preserve error regarding the State's impeachment of appellant's sister.

(4) Appellant argues counsel was ineffective in failing to locate and call as an alibi witness Jim Sutton, the owner of the car delivered by appellant on the night of the crime. Counsel testified that to the best of his recollection, he had stopped looking when his investigation showed Sutton's testimony would not be helpful. Appellant maintains it was crucial to his defense to have a disinterested witness corroborate his alibi, citing Montgomery v. Petersen (7th Cir.1988), 846 F.2d 407 which holds the failure to fully investigate and locate alibi witnesses constitutes ineffective assistance. Nevertheless,...