Ferguson v. State
| Decision Date | 03 June 1985 |
| Docket Number | No. 683S238,683S238 |
| Citation | 478 N.E.2d 673 |
| Parties | Harry E. FERGUSON, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender, Frances Watson, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.
The petitioner-appellant, Harry Ferguson, is before this Court appealing from the denial of his petition for post-conviction relief. He was convicted of attempted murder, a class A felony, I.C. Secs. 35-42-1-1 and 35-41-5-1; and attempted rape, a class A felony, I.C. Secs. 35-42-4-1 and 35-41-5-1. In addition, he was determined to be a habitual offender. He received a prison sentence of 110 years. His convictions were affirmed on direct appeal in Ferguson v. State (1980), 273 Ind. 369, 403 N.E.2d 1373.
Appellant raises two issues on appeal; (1) whether the post-conviction court erred in not finding that he was denied a fair trial; and (2) whether he was denied effective assistance of counsel.
At a post-conviction hearing the petitioner has the burden of proving his allegations by a preponderance of the evidence. The court reviewing the hearing will reverse the trial court's decision only if the evidence supporting reversal is unerring and without conflict. Watkins v. State (1980), 274 Ind. 280, 410 N.E.2d 1198.
Appellant presented the claim below that he was denied a fair trial and an impartial jury due to jury misconduct, lay witness testimony on the issue of insanity, and the trial court's denial of his motion for change of venue.
A. The issue of whether appellant was entitled to a mistrial due to jury misconduct was fully addressed by this Court on direct appeal. See Ferguson, supra. We held that a new trial was not required because appellant's right to an impartial jury was not diminished by the mere fact of conversations among jurors. We also held that the requirements of I.C. Sec. 35-1-37-1, concerning the handling of jury conduct, had been met. Since this issue has been fully litigated on direct appeal, it is resjudicata at a subsequent post-conviction hearing and is not a valid topic for review. Winston v. State (1978), 267 Ind. 587, 372 N.E.2d 183.
B. The trial court permitted lay witnesses to give an opinion on whether appellant was suffering from a mental disease or defect. Appellant claims this was improper because the lay testimony expressed opinions on an ultimate issue of fact.
Lay witness opinion as to a defendant's sanity or insanity is permitted in Indiana under certain circumstances. As a general rule, those who are acquainted with the accused or who have had sufficient opportunity to observe his conduct, may narrate the relevant facts known to them and thereupon express an opinion as to his sanity. 31 Am.Jur.2d. Expert and Opinion Evidence Sec. 88; McCall v. State (1980), 273 Ind. 682, 408 N.E.2d 1218. Moreover, the trial court may permit an opinion on an ultimate issue of fact in an appropriate case. In exercising its discretion, the trial court should consider the nature of the issue and the offered opinion in light of all attendant circumstances of the particular case. See Rieth-Riley Construction Company, Ind. v. McCarrell (1975), 163 Ind.App. 613, 325 N.E.2d 844.
On direct examination, State's witness, Michael Goins, was asked this question:
From your observations of Harry Ferguson during that time, do you have an opinion as to whether or not he was suffering from a mental disease or defect such to the point that he couldn't be held responsible for his actions?
Appellant objected on the ground that the witness was not competent to respond to the question. The trial court sustained his objection because the question called for a conclusion of law on the part of the witness. Subsequently, the State rephrased its question in this manner:
From your observations of Harry that night, do you have an opinion as to whether or not he was suffering from any mental disease or defect?
Appellant raised the same objection to this question. However, this time the trial court overruled the objection. The trial court's action was correct because the rephrased question called for an opinion on an issue of fact. Michael Goins, and two other witnesses responded to the rephrased question by indicating that in their opinion appellant was not suffering from a mental disease or defect.
All three State's witnesses were acquainted with the appellant and had an opportunity to observe his demeanor and conduct. Consequently, the trial court did not err in allowing them to express an opinion as to whether appellant was suffering from a mental disease or defect.
C. Appellant further contends that he was denied a fair trial because his motion for change of venue was denied. He alleged that there existed a racial bias in Morgan County against him due to the fact that his wife was black. Also, he presented several newspaper articles and a recorded radio broadcast in order to demonstrate that county residents were aware that his wife was black.
The trial court determined that appellant was not entitled to a change of venue. Appellant has not demonstrated a pattern of deep and bitter prejudice throughout the community. Consequently, we cannot say that the trial court erred in its determination.
It is evident that no basis has been demonstrated for the claim that appellant did not have a fair trial by an impartial jury.
Appellant presented the claim below that he was denied effective assistance of counsel.
It is based upon two alleged errors by counsel during the course of the criminal proceedings that allegedly indicate counsel's ineffectiveness; (1) that counsel failed to object to the trial court's denial of his motion for change of venue; and (2) that counsel failed to object to lay testimony which expressed opinion on his sanity.
These guidelines are to be followed when reviewing ineffective assistance claims.
THE STANDARD OF COMPETENCY:
"The proper standard for attorney performance is that of reasonably effective assistance." Strickland v. Washington (1984), --- U.S. ----, ----, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674.
THE PRESUMPTION OF COMPETENCY:
"Judicial scrutiny of counsel's performance must be highly...
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Borchert v. State
...to give an opinion regarding an issue of ultimate fact. Hughett v. State (1990), Ind., 557 N.E.2d 1015, 1022; Ferguson v. State (1985), Ind., 478 N.E.2d 673, 674-675. Borchert has not demonstrated an abuse of As the State points out, error in the admission of Peters' testimony, if any, was ......
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Rinker v. State, 48A02-8907-CR-00357
...child. Testimony is not necessarily to be excluded merely because it constitutes an opinion upon the ultimate issue. Ferguson v. State (1985) Ind., 478 N.E.2d 673. Such rulings lie within the sound discretion of the trial court. As to such matters, in Augustine v. State (1984) Ind., 461 N.E......
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Hughett v. State
...rule in this jurisdiction, however, is that such testimony is admissible within the discretion of the trial court. Ferguson v. State (1985), Ind., 478 N.E.2d 673. At any rate, the testimony does not constitute conclusions as to ultimate facts; rather, it is descriptive of the reasons why th......
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Ferguson v. State
...at 1374. Ferguson subsequently filed a petition for post-conviction relief, which was denied and affirmed on appeal. See Ferguson v. State, 478 N.E.2d 673 (Ind.1985). In September 1994, Ferguson filed a Motion to Correct Erroneous Sentence, which was granted on January 26, 1995. The trial c......