Games v. State

• Decision Date: 22 July 1997
• Docket Number: No. 49S00-9002-PD-114,49S00-9002-PD-114
• Citation: 684 N.E.2d 466
• Parties: James GAMES, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Supreme Court

Page 466

684 N.E.2d 466

James GAMES, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 49S00-9002-PD-114.

Supreme Court of Indiana.

July 22, 1997.

Rehearing Granted Dec. 23, 1997.

Susan K. Carpenter, Public Defender, J. Michael Sauer, Marie F. Donnelly, Deputy Public Defenders, for Defendant-Appellant.

Pamela Carter, Attorney General, Arthur Thaddeus Perry, Deputy Attorney General, for Plaintiff-Appellee.

DICKSON, Justice.

The defendant, James Games, appeals from a judgment granting and denying postconviction relief following his convictions for the 1983 murder of Thomas Ferree, Robbery, Conspiracy to Commit Battery, and Conspiracy to Commit Robbery. The defendant was sentenced to death for Murder and forty years on the other three counts. The convictions and sentences were affirmed on direct appeal. Games v. State, 535 N.E.2d 530 (Ind.1989), cert. denied, 493 U.S. 874, 110 S.Ct. 205, 107 L.Ed.2d 158.

Upon the defendant's petition for post-conviction relief, the post-conviction court upheld the Murder, Robbery, and Conspiracy convictions, but reversed the defendant's death sentence and remanded the case to the trial court for a new penalty phase trial, finding that the performance of trial counsel at the original penalty phase was ineffective. The defendant now appeals from the denial of post-conviction relief as to the convictions. The State does not appeal from the grant of post-conviction relief regarding the penalty phase proceeding.

Appealing from the partial denial of his petition for post-conviction relief, the defendant-petitioner raises five allegations of error: (1) ineffective assistance of trial counsel at the guilt phase; (2) the State's failure to disclose materially favorable evidence; (3) ineffective assistance of appellate counsel; (4) ineffective assistance of counsel due to systemic defects in the Marion County Superior Court indigent defense system; and (5) violation of the constitutional prohibitions against double jeopardy. We affirm the post-conviction court in part and reverse in part.

1. Ineffective Assistance of Trial Counsel at the Guilt Phase

The defendant contends that he received inadequate trial representation from his attorney in violation of the Sixth and Fourteenth Amendments to the United States Constitution. To prevail with an ineffective assistance of counsel claim, the defendant must show that counsel's performance was so deficient that he was not functioning as the "counsel" guaranteed by the Sixth Amendment and that this deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Lloyd v. State, 669 N.E.2d 980, 984 (Ind.1996).

The defendant offers numerous instances of alleged deficient performance by his attorney. However, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Strickland, 466 U.S. at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699. Stating, "[t]he object of an ineffectiveness claim is not to grade counsel's performance," the Court instructed that, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id.

We recently have addressed the requirements necessary to establish prejudice when a defendant challenges his guilty plea on the grounds of ineffective assistance of counsel. See State v. Van Cleave, 674 N.E.2d 1293 (Ind.1996) (holding that, to establish prejudice, the defendant must show a reasonable probability that he would not have been convicted at trial). The Court in Strickland held that "the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Strickland, 466 U.S. at 695, 104 S.Ct. at 2068-69, 80 L.Ed.2d at 698. As we noted in Van Cleave, while the Strickland Court initially stated that a reasonable probability is a probability sufficient to undermine confidence in the outcome, rendering the verdict unreliable, the Court's recent decision in Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), has elaborated upon this definition. Placing emphasis on whether the "result of the proceeding was fundamentally unfair or unreliable," the Fretwell Court stated that setting aside a conviction "solely because the outcome would have been different but for counsel's errors may grant the defendant a windfall to which the law does not entitle him." Id. at 369-70, 113 S.Ct. at 842-43, 122 L.Ed.2d at 189. Thus, a different outcome but for counsel's error will not constitute prejudice if the ultimate result reached was fair and reliable.

Complicating the ineffective assistance of counsel analysis in this case is the fact that the defendant is appealing the denial of his petition for post-conviction relief, a negative judgment. Thus, the defendant must convince this Court that the evidence presented during the post-conviction proceeding is without conflict and, as a whole, leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. Spranger v. State, 650 N.E.2d 1117, 1119 (Ind.1995). The defendant's claim in post-conviction proceedings--that he received constitutionally inadequate assistance of trial counsel--required that he prove, among other things, that the ultimate result (his convictions) was fundamentally unfair or unreliable. In his post-conviction case, the defendant's prejudice claim was that, but for counsel's deficient performance, the defendant would not have been convicted of murder, but rather a lesser-included offense: voluntary manslaughter, involuntary manslaughter or reckless homicide. However, in this appeal from the post-conviction court's negative finding, the proper inquiry is not simply whether "but for counsel's mistakes" the outcome would have been different. The defendant must convince this Court that there is no evidence presented which supported a murder conviction ¹ and that, as a whole, the evidence leads unerringly and unmistakably to a decision that his conviction for murder was unfair and unreliable. We find that the defendant has failed to carry this burden.

When evaluating the defendant's claim of prejudice, we are mindful that, "a court hearing an ineffectiveness claim must consider the totality of the evidence" in making this determination. Strickland, 466 U.S. at 695, 104 S.Ct. at 2069, 80 L.Ed.2d at 698. The totality of the evidence illustrates that there was sufficient, indeed overwhelming, ² evidence presented supporting a fair and reliable conviction for murder.

The evidence presented to the post-conviction court included the following. At trial, codefendant Tillberry, who pled guilty to Ferree's murder, testified that he and the defendant decided to steal a stereo from the victim, a former acquaintance of the defendant. The defendant phoned the victim and arranged to have him pick them up, the victim apparently expecting homosexual favors from the boys. After arriving at the victim's house, the defendant took a shower, leaving Tillberry alone with the victim. Following the defendant's return, the victim left the room and Tillberry told the defendant that the victim was making passes at him. The defendant suggested that Tillberry stab the victim as they were walking up the stairs to take a shower. Tillberry did this, stabbing the victim in the back with a wooden handled, lock-blade folding knife. The victim yelled out the defendant's name, stating that he was going to get the defendant and started down the stairs. Tillberry testified that he then ran past the victim, went across the room, and looked back to see the victim lying on the floor. He testified that the defendant then pulled Tillberry's knife out of the victim's back and started stabbing the victim with the knife again. The defendant and the victim fought with each other and the defendant asked Tillberry to "get him something else." Record at 814. Tillberry testified that he gave the wrought iron fireplace poker to the defendant, who used it on the victim. The defendant again asked Tillberry to get him something else and Tillberry went into the kitchen, retrieved a kitchen knife and a meat cleaver, and gave it to the defendant. At this point, the victim had stopped moving. The defendant then went into the kitchen himself, retrieved several more knives and resumed stabbing the victim. As they were leaving, Tillberry threw a knife at the victim, which hit the victim's shoulder and remained there. The defendant and Tillberry then stole the victim's car and left.

Tillberry's testimony is corroborated by the evidence collected at the scene. The pathologist who completed the autopsy on the decedent, John Baenziger, M.D., testified that the victim died as the cumulative result of twenty-two stab wounds to the head, neck, chest, back, extremities, and abdomen and severe blunt force trauma and fractures to the skull and face. The crime scene field technician, Ed Charters, a sergeant with the Indiana State Police, collected the following weapons from the residence: two yellow handled knives, two silver handled kitchen knives, a wooden handled folding knife, a wooden handled kitchen knife, a meat cleaver, a wrought iron fireplace poker, and a nondescript kitchen knife. He also collected dried blood samples from the walls in the residence and from the kitchen. Forensic serologist James Romack analyzed the dried blood on the weapons and the blood samples collected by Sergeant Charters. He found blood consistent with the defendant's blood type on both of the yellow handled knives, the wooden handled folding knife, the wooden handled kitchen knife, one of the silver handled kitchen knives, the wrought iron fireplace poker, and the nondescript kitchen knife. He also found that ten of the fourteen...