Garrett v. State
| Decision Date | 05 November 1992 |
| Docket Number | No. 49S00-9201-CR-6,49S00-9201-CR-6 |
| Parties | Ned GARRETT, Jr. Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
John F. Crawford, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Geoff Davis, Deputy Atty. Gen., for appellee.
A jury trial resulted in the conviction of appellant of Murder, for which he received a sentence of forty (40) years enhanced by thirty (30) years by reason of his status as a habitual offender.
The facts are: In the early morning of August 9, 1989, Ollie Robinson and his younger brother, Timmy Robinson (the victim in this case), were "out getting high" on cocaine. In order to raise more money to purchase cocaine, the brothers packaged flour and sold it to others as cocaine.
Some time later that morning, near 23rd Street and College Avenue, the brothers were approached by a man later identified as appellant. He complained to the brothers that they had sold him "fake" cocaine. During the confrontation, appellant produced a sawed-off shotgun and ordered the brothers into some bushes. He shot Timmy once in the chest resulting in his death. Ollie ran with appellant in pursuit. During the pursuit, he shot Ollie in the arm and buttocks and beat him with the shotgun.
Larry Garrett, not related to appellant, lived at 2249 North Park Avenue. He heard the shots and saw a running man throw something down. Later that morning he found a sawed-off shotgun in his yard. He called the police and they recovered the shotgun. There were no readable fingerprints on the shotgun nor were they able to establish that the pellets found in Timmy's body in fact had been fired from that shotgun. However, they were able to determine that the shotgun was 12 gauge and that Timmy had been killed by a 12 gauge shotgun.
Before trial, Connie Kincaid, appellant's girlfriend, identified the shotgun as the gun appellant once owned. Sheila Mitchell identified the shotgun as the one she had given to appellant. In an unrecorded statement to Detective Larkins, appellant admitted the weapon he used was a shotgun. However, in a recorded statement made by appellant, he made several incriminating statements, exculpatory statements, and a statement that he had used a pistol in committing the shooting. Also, during this statement, he said that he was not telling the truth.
Appellant claims his counsel was ineffective in that although he filed a motion to suppress appellant's confession and Kincaid's inculpatory statement, which motion was overruled by the trial court, he failed to object at trial when this evidence was submitted by the State. Appellant correctly cites Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 for the proposition that a two-step test is required to establish ineffectiveness of counsel: 1) that counsel's representation was "deficient," and 2) that the defendant was harmed as a result. He also cites the case of Elliott v. State (1984), Ind., 465 N.E.2d 707 for the same proposition. We also have held that reversal is appropriate only where the evidence leads unerringly and unmistakably to the conclusion that trial counsel rendered ineffective assistance. McCraney v. State (1987), Ind., 508 N.E.2d 798.
The trial court held a hearing on appellant's motion to suppress during which appellant claimed that his statement was involuntary as a result of his cocaine intoxication. The State's evidence showed that when appellant was arrested at his apartment on the afternoon of March 10, 1990, he agreed to go with the police officers, he walked down a stairway from his third-floor apartment without assistance or any difficulty, his speech was normal, and there was nothing unusual about his appearance. He showed no signs of being tired or under the influence of drugs or alcohol.
Upon emerging from the building, he was identified by Ollie Robinson, who had directed the police to appellant's apartment. Upon being identified by Ollie, the police arrested appellant and read him his Miranda warnings. He then was transported to the police station where he eventually was questioned and made the statements above referred to. Other than appellant's own statements there was a total lack of evidence of his incapacity to give a confession, and in fact, the State's evidence was overwhelming that he in fact did have the capacity to do so and that he did so only after being properly apprised of his rights.
Under these circumstances, it cannot be said that had counsel made an objection to the admission of appellant's statements during the trial, the objection would have been sustained. Counsel cannot be faulted for failing to make an objection which had no hope of success and which might have the adverse effect before the jury of emphasizing the admissibility of appellant's statement. Failure to object to admissible evidence does not constitute ineffective assistance of counsel; a defendant must show that had a proper objection been made the court would have had no choice but to sustain it. Kimble v. State (1983), Ind., 451 N.E.2d 302; Hunter v. State (1991), Ind., 578 N.E.2d 353.
Appellant also contends it was error to permit the use of Connie Kincaid's taped statement and that counsel was ineffective for not objecting thereto. However, the record shows that there was no intention on the State's part of using Kincaid's statement in their case-in-chief. Kincaid's statement first was mentioned by appellant's trial counsel in the cross-examination of Detective Larkins. In fact, prior to trial defense counsel had listed Kincaid as a defense witness. However, as above stated, he had attempted to have her statement to Larkins suppressed.
When appellant's counsel cross-examined Larkins, he asked whether Kincaid had told him that the shotgun was not the gun which appellant once possessed. During Kincaid's testimony, as a defense witness, she stated that she told Larkins that the gun he showed her was not the one defendant had owned. On redirect examination of Larkins, the State offered Kincaid's statement to establish the fact that she in fact had told Larkins the shotgun he showed her was the one that had been in appellant's possession.
Appellant claims it was ineffective assistance for counsel 1) to raise the issue of Kincaid's statement to Larkins; and 2) to fail to object to the admission of her taped statement on the redirect examination of Larkins. Of course, once the issue was raised, it was not error to place Kincaid's statement in evidence as an...
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