Ford v. State, 45A05-1009-PC-610

• Decision Date: 09 August 2011
• Docket Number: No. 45A05-1009-PC-610,45A05-1009-PC-610
• Parties: TOMMY D. FORD, Appellant-Petitioner, v. STATE OF INDIANA, Appellee-Respondent.
• Court: Indiana Appellate Court

TOMMY D. FORD, Appellant-Petitioner,

v.STATE OF INDIANA, Appellee-Respondent.

No. 45A05-1009-PC-610

COURT OF APPEALS OF INDIANA

Filed: August 9, 2011

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE:

TOMMY D. FORD

Michigan City, Indiana

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER

Attorney General of Indiana

KARL M. SCHARNBERG

Deputy Attorney General

Indianapolis, Indiana

APPEAL FROM THE LAKE SUPERIOR COURT

The Honorable Thomas P. Stefaniak, Judge

Cause No. 45G04-0808-PC-7

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE

Tommy D. Ford, pro se, appeals the post-conviction court's denial of his petition for post-conviction relief. Ford raises five issues for our review:

1. Whether his trial counsel was ineffective for failing to object to improper closing argument regarding Ford's failure to testify at trial.

2. Whether his trial counsel was ineffective for failing to investigate State's witness Rodney Williams.

3. Whether his trial counsel was ineffective for failing to object to the admission of deposition testimony by State's witness Sade Robinson.

4. Whether his trial counsel was ineffective for failing to offer into evidence the entire deposition testimony of Ronell Simmons.¹

5. Whether his trial counsel was ineffective for failing to prepare Ford to testify at trial.

We affirm.

FACTS AND PROCEDURAL HISTORY

On October 19, 2006, Ford was convicted of murder for the shooting death of Christian Hodge.² Ford appealed his conviction, alleging that the trial court had abused its discretion by admitting certain hearsay evidence through the excited utterance exception and that his sentence was inappropriate in light of the nature of his offense and his character. In a memorandum decision, this court affirmed on both issues. Ford v. State, 45A03-0701-CR-[20] (Ind. Ct. App. October 23, 2007).

On August 1, 2008, Ford filed a pro se petition for post-conviction relief. Subsequently, a public defender entered an appearance but later filed a motion to withdraw, which the post-conviction court granted. Ford then hired private counsel, who filed a second amended petition for post-conviction relief on August 21, 2009. On October 7, Ford by counsel filed a third amended post-conviction petition.³

On January 10, 2010, the court held an evidentiary hearing on Ford's third amended petition. At the conclusion of the hearing, the court ordered the parties to submit proposed findings and conclusions. On August 31, the court entered its findings and conclusions, which provide in relevant part:

1. On November 3, 2005, [Ford] was charged with the murder of Christian Hodge.

2. Attorney Kevin Milner represented [Ford] and the case proceeded to jury trial on May 15, 2006. The jury deadlocked, however, and the court declared a mistrial.

3. A second trial began on October 16, 2006. The jury found Ford guilty of murder.

4. The evidence presented at trial is best summarized in the memorandum decision of the Indiana Court of Appeals:

The facts of this case are summarized in our decision on Ford's direct appeal:

On November 1, 2005, Ford visited Glen Park in Gary and encountered an acquaintance, James Grace. Ford talked with Grace and drank vodka with one of Grace's friends. Grace told Ford that he needed a place to store his vehicle. Ford offered to show Grace his garage as a possible storage location. Ford left his car at the park and rode with Grace to Ford's home. As the two men approached Ford's house, they passed fifteen-year-old Christian Hodge, who was seated on a front-yard retaining wall on the property next door. Ford andHodge greeted each other. When Ford and Grace entered Ford's house, Ford said to Grace, "I can't stand that mother fucker. I'll be back." Tr. at 78. Ford left the house, and Grace heard a popping sound shortly thereafter. He looked outside and saw Hodge lying in the street. Ford came back inside the house and said to Grace, "I got to get the fuck out of here, and meet me down—meet me at the end of the alley and pick me up." Id. at 87. Grace got into his truck and drove away. He soon located a police officer and led him back to the crime scene. Hodge had suffered one gunshot wound to the back of his head, and he died the next day.

At the crime scene, Gary Police Officer Daniel Quasney spoke with witness Ronell Simmons, who appeared to be "upset, in disbelief, and in a state of shock." Id. at 246. Simmons stated that he had seen the victim talking to a black male in a black hooded sweatshirt. He stated that the man pulled out a gun and shot Hodge in the head and then walked away.

Ford's first trial, in which Simmons testified, ended in a mistrial on May 18, 2006. During the second trial, the State alleged that Simmons was unavailable to testify and moved for admission of Simmons's prior testimony. The trial court denied the State's request. The State later moved to admit Officer Quasney's testimony recounting Simmons's statements at the crime scene. The trial court admitted this evidence pursuant to Indiana Evidence Rule 803(2), the excited utterance exception to the hearsay exclusion rule. See Ind. Evidence Rule 801(c) (" 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."); Ind. Evidence Rule 802 ("Hearsay is not admissible except as provided by law or by these rules.").

The jury found Ford guilty as charged.

Ford v. State, 45A03-0701-CR-[20] ([Ind. Ct. App.] October 23, 2007).

5. The court sentenced Ford to fifty years in the Department of Correction.

6. Ford raised two issues on direct appeal:

I. Whether the trial court abused its discretion by admitting certain hearsay evidence through the excited utterance exception, and

II. Whether the sentence was inappropriate in light of the nature of his offense and his character.

7. On October 23, 2007, the Indiana Court of Appeals affirmed the conviction and sentence. Id.

8. Ford filed a pro[ ]se petition for post-conviction relief on August 1, 2008. The office of the Indiana State Public Defender entered an appearance on September 2, 2008, but ultimately withdrew representation pursuant to Rule PC 1(9)(c).[]

[Footnote: Rule PC 1(9)(c) states, in relevant part: "Counsel shall confer with petitioner and ascertain all grounds for relief under this rule . . . [.] In the event that counsel determines the proceeding is not meritorious or in the interests of justice . . . counsel shall file with the court counsel's withdrawal of appearance . . . [.]"

9. [Ford] hired private counsel who amended the petition raising the following claims:

(1) . That Ford was denied the effective assistance of trial counsel;

(2) . That the State failed to prove Ford guilty

beyond a reasonable doubt;

(3) That the State failed to timely disclose that certain witnesses from the first trial would not be present at the second trial and that one of the witnesses had been in contact with missing witness "Tony" one month before the second trial; and finally,

(4) That Ford was denied the effective assistance of appellate counsel.

10. At the hearings on the petition, the court took judicial notice of the post-conviction file and the related trial file under cause number 45G04-0511-MR-00011. The court received the Record of Proceedings and heard the testimony of numerous witnesses. The Petitioner presented the testimony of trial and appellate counsel as well as the testimony of Michael Edwards, a former inmate of the Lake County Jail who was incarcerated with Ford around the time of Ford's first trial. [Ford] also presented thetestimony of several of his relatives. Finally, Ford admitted exhibits to which we will refer as necessary in our findings and conclusions as P.E. (Petitioner's Exhibit).

11. Ford's trial attorney has practiced law for twenty-seven years litigating over five hundred jury trials. He represented Ford at both of the jury trials.

12. Prior to the second trial, the State informed counsel that certain witnesses from the first trial would not be presented, including Sade Robinson and Ronell Simmons. P.E. 2.

13. The State informed counsel and the trial court that Robinson was unavailable because she had just given birth some three weeks prior to trial, lived in the State of Michigan and was breast-feeding the newborn. P.E. 3.

14. Based on the evidence presented at the first trial, and the outcome thereof, counsel was very pleased that Robinson would not be present at the second trial. In counsel's opinion, Robinson testified poorly at the first trial and counsel was concerned that she would have improved her testimony in anticipation of the second trial. Therefore, in counsel's words, he "did back flips" when the State moved to use her testimony from the first trial.

15. The State also moved to admit the testimony of Ronell Simmons from the first trial asserting that Simmons was unavailable. Tr. 6-38. Trial counsel felt that Simmon[s'] testimony was damaging to the defense because Simmons identified the defendant in the first trial. Therefore, counsel had no interest in finding Simmons or having him testify. Counsel objected to the State's motion arguing that Simmons was not unavailable. Id. The court denied the State's motion ruling that the State had failed to prove unavailability. Tr. 38.

16. Interestingly, defense counsel later sought to admit Simmons' pre-trial deposition as evidence in the case. Tr. 266. The State objected that the deposition was hearsay. Tr. 268. The court reminded the defense that the court had found Simmons was not unavailable. Tr. 269. Ultimately, the court ruled the witness unavailable to the defense, the proponent of the deposition, under I.R.E. 804(a)(5),[] and held that the defense could introduce the deposition as long as the entire deposition were

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