Gann v. State

• Decision Date: 12 February 1990
• Docket Number: No. 41S00-8808-PC-719,41S00-8808-PC-719
• Citation: 550 N.E.2d 73
• Parties: Curtis GANN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 73

550 N.E.2d 73

Curtis GANN, Appellant, v. STATE of Indiana, Appellee.

No. 41S00-8808-PC-719.

Supreme Court of Indiana.

Feb. 12, 1990.

Susan K. Carpenter, Public Defender, Margaret Hills, Sp. Asst., Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

Two separate cases were originally filed in this cause; however, on October 16, 1973, by stipulation of the parties, the two cases were consolidated in a nunc pro tunc order dating back to November 6, 1972.

This is an appeal from the denial of appellant's second petition for post-conviction relief. In May of 1973, a jury trial resulted in the conviction of appellant of the murders of Jimmy and Brenda Powers, for which appellant received two concurrent life sentences. The original convictions were appealed to this Court and affirmed. Gann v. State (1975), 263 Ind. 297, 330 N.E.2d 88.

In March of 1979, appellant filed his first post-conviction relief petition in which he was represented by private counsel, Niles Stanton. In October of 1979, the petition was denied and the cause was appealed to this Court, and the decision of the trial court was affirmed. Gann v. State (1983), Ind., 450 N.E.2d 1003.

At the time of the appeal, Niles Stanton had withdrawn from the case and appellant was represented by Susan K. Carpenter, Public Defender of Indiana, and Sheila K. Zwickey, Deputy Public Defender. Appellant filed his second petition for post-conviction relief pro se in March of 1985. In June of 1985, the Public Defender of Indiana through its Deputy Public Defender, Teresa D. Harper, entered her appearance on appellant's behalf. The pro se petition was amended, and a hearing was held in December of 1987. In February of 1988, the petition was denied. This is an appeal from that denial.

Appellant claims the trial court erred in denying his petition for post-conviction relief on the basis of waiver. In this second petition for post-conviction relief, appellant for the first time raised the issue of ineffectiveness of counsel. He takes the position that his original trial counsel, his appellate counsel on his original conviction, his trial counsel on his first post-conviction relief petition, and the appellate counsel on his first post-conviction relief petition were all ineffective, claiming in part that each in turn was ineffective for not raising the incompetency of the predecessor. The trial court ruled that the failure of each successive attorney to challenge the competency of his predecessor constituted a waiver of those issues.

Post-conviction relief is not a proper forum for the raising of issues available to a petitioner on his original appeal. Barker v. State (1987), Ind., 508 N.E.2d 795. An exception to this rule may be implemented if appellant is successful in showing that the matter which otherwise would be waived is fundamental error. Id.; Haggenjos v. State (1986), Ind., 493 N.E.2d 448. By alleging incompetency of counsel, appellant invokes a myriad of accusations against each of the previous counsel in an attempt to demonstrate incompetency, which he in turn attempts to parlay into fundamental error.

He claims his trial counsel failed to properly investigate the case and to call witnesses to testify in his behalf (the record indicates that a large number of these witnesses were family members, some of whom were involved in the melee which resulted in the death of the victims). He also alleges that trial counsel failed to object at various points during the trial, failed to tender proper instructions, and failed to object to instructions tendered.

He claims his original appellate counsel were negligent in not raising the issue of the incompetency of his original trial counsel, although it should have been clear to them from the record that the trial counsel was incompetent. He contends his original counsel in his first post-conviction relief petition was incompetent for not challenging the competency of his three original appellate counsel and his original trial counsel.

Although we take the position that the trial court was correct in denying appellant's second petition for post-conviction relief, we have examined the record as to the conduct of the original trial counsel and find that appellant falls far short of any demonstration of incompetence of that counsel.

Appellant has submitted affidavits of members of his family and friends who state that they were intimidated by police officers and thus were prevented from testifying at appellant's first trial. This alleged intimidation was that they might be prosecuted inasmuch as they had been participants in the melee. They therefore now claim that this threat of possible prosecution prohibited them from testifying in appellant's behalf. However, nowhere in these affidavits or in appellant's other allegations is there any indication as to what they might have testified, which would tend to work as a defense for appellant.

Appellant takes the position that his trial counsel knew of this situation but failed to attempt to call the friends and relatives as witnesses. After trial counsel had conversed with each of these so-called potential witnesses and made the decision not to use them as witnesses, one hardly can surmise that he was incompetent in so doing. To refuse to use friends and relatives of appellant who were in some manner involved in appellant's case hardly can be viewed as a mark of incompetence. It falls well within the realm of tactical decisions for which a court of appeals will not second-guess counsel. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.

Appellant contends his trial counsel showed incompetence in that he did not insist upon appellant's right to a speedy trial, which appellant had requested. Actually no motion for a speedy trial was filed. However, appellant had written a letter to the trial judge stating that he wished the case to proceed with dispatch. There is no showing in this record that counsel ever made such a request or that such a request was called for. Trial counsel was engaged at the time in attempting to prepare appellant's defense. The record shows that the trial was held well within the year after appellant's arrest and one must presume that counsel felt the time involved was needed to prepare for trial.

There is a total lack of showing in this record of any incompetence on the part of trial counsel for failing to file a motion for speedy trial. Nor is there any showing or allegation that any possible delay caused by such a failure worked to appellant's detriment.

Appellant claims his trial counsel was incompetent in failing to object to Jury Instruction No. 6, which read: "You are instructed that every man is supposed to intend the natural consequences of his own acts." Appellant cites Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, which holds that a similar instruction is reversible error because it shifts the burden of proof to the defendant on the critical question of intent in a criminal prosecution.

However, Sandstrom was decided six years subsequent to the submission of the questioned instruction in appellant's case and four years after appellant's direct appeal was decided. We cannot say that the original trial counsel was incompetent because he did not make an objection to an instruction which had not yet been held to be reversible error. Nor can we say that appellate counsel was incompetent for failure to raise that issue when the Sandstrom case was decided four years after they wrote their brief. We decline to apply the Sandstrom case retroactively once the direct appeal is final. See Griffith v. Kentucky (1987), 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649; Love v. State, (1988), Ind., 519 N.E.2d 563, 565.

We would observe that other instructions to the jury in the original trial clearly stated the necessity for the jury to find that appellant acted with malicious intent and premeditation in order to find him guilty of first-degree murder. We further would point out that...