Edgin v. State, 45A03-9505-PC-165
| Decision Date | 16 November 1995 |
| Docket Number | No. 45A03-9505-PC-165,45A03-9505-PC-165 |
| Citation | 657 N.E.2d 445 |
| Parties | James W. EDGIN, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. |
| Court | Indiana Appellate Court |
James Edgin ("Edgin") appeals the denial of his petition for post-conviction relief following his convictions for three counts of child molesting, a class B felony. 1 On appeal, Edgin presents the sole issue of whether the post-conviction court erred in denying his petition.
We affirm.
The facts most favorable to the judgment reveal that a jury convicted Edgin of three counts of child molesting in January 1987. His conviction was affirmed by this court on direct appeal in a memorandum decision. In his petition for post-conviction relief, Edgin alleged that he was denied effective assistance of trial and appellate counsel. After a hearing, the post-conviction court issued its findings denying Edgin's petition.
Under the rules of post-conviction relief, the petitioner bears the burden of establishing his grounds for relief by a preponderance of the evidence. Ind.Post-Conviction Rule 1, § 5; Weatherford v. State (1993), Ind., 619 N.E.2d 915, 917, reh. denied. To prevail on appeal from the denial of post-conviction relief, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite to that reached by the trial court. Id.
To prevail on a claim of ineffective assistance of counsel, a defendant must show that: (1) the performance of his counsel was deficient and (2) he was adversely prejudiced as a result of that deficient performance. Lowery v. State (1994), Ind., 640 N.E.2d 1031, 1046, reh. denied. The defendant must show that the performance was so prejudicial that it deprived him of a fair trial. Id. at 1046-47. Counsel is presumed competent and the defendant must present strong and convincing evidence to rebut this presumption. Fugate v. State (1993), Ind., 608 N.E.2d 1370, 1372.
Judicial scrutiny of counsel's performance is highly deferential and should not be exercised through the distortions of hindsight. Isolated poor strategy, inexperience, or bad tactics do not necessarily amount to ineffectiveness of counsel. Bellmore v. State (1992), Ind., 602 N.E.2d 111, 123, reh. denied (citing Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674).
Edgin alleges that his trial counsel was ineffective because he failed to properly object to testimony by a detective that the victims "seemed very credible." Trial counsel objected to the testimony on the basis that it was narrative. However, Edgin contends that he should have objected to that statement on the basis that it was improper "vouching" testimony and requested that the jury be admonished to disregard it.
When a defendant alleges failure to properly object as the basis for his ineffective assistance of counsel claim, he must show that a proper objection would have been sustained by the trial court. Lowery, supra, at 1042. Absent such a showing, the petitioner cannot prevail. Id.
Neither lay nor expert witnesses are permitted to testify concerning the credibility of another witness. Stewart v. State (1990), Ind., 555 N.E.2d 121, 125. In the context of a child molestation case, a witness is permitted to testify concerning the child's general competence, tendency to exaggerate, and ability to understand sexual matters. Id. However, the witness cannot make any direct assertions concerning his belief in the child's testimony. Only the jury can determine the weight to give to testimony. Id. Therefore, Detective Lawson's statement concerning the children's credibility amounted to improper vouching testimony. An objection to the testimony would have been sustained.
Our inquiry does not end here, however. In addition to showing that a proper objection would have been sustained, Edgin must also show that his attorney's failure prejudiced him and deprived him of a fair trial. Lowery, supra, at 1046. This court has previously held that when a defendant is given an opportunity to cross-examine the victim and other witnesses concerning the victim's credibility, he is not denied a fair trial. Okuly v. State (1991), Ind.App., 574 N.E.2d 315, 316-17, trans. denied. See also, Kelley v. State (1991), Ind.App., 566 N.E.2d 591, 593 (...
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...of counsel based on a failure to make an objection, it must be demonstrated the objection would have been sustained. Edgin v. State, 657 N.E.2d 445, 447 (Ind.Ct.App. 1995), trans. Conrad claims trial counsel should have objected to two of the trial court's final instructions. In order to es......
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...Suggesting that witnesses are sometimes reluctant to talk to police does not vouch for a witness's truthfulness. Cf. Edgin v. State, 657 N.E.2d 445, 447 (Ind.Ct.App.1995) (detective's testimony that the victims "seemed very credible" was improper vouching testimony). The testimony here was ......
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