Geary v. State

• Decision Date: 15 September 1986
• Docket Number: No. 985S377,985S377
• Citation: 497 N.E.2d 228
• Parties: Kermit Ray GEARY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 228

497 N.E.2d 228

Kermit Ray GEARY, Appellant, v. STATE of Indiana, Appellee.

No. 985S377.

Supreme Court of Indiana.

Sept. 15, 1986.

Dennis R. Tackett, New Albany, for appellant.

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

PIVARNIK, Justice.

Defendant-Appellant Kermit Ray Geary was convicted at the conclusion of a jury trial in the Clark Circuit Court of burglary, a class C felony; theft, a class D felony; and of being an habitual offender. He was sentenced to five (5) years for burglary and two (2) years for theft, to be served concurrently, and his sentence was enhanced by thirty (30) years due to the habitual offender finding, for a total sentence of thirty-five (35) years. On direct appeal, the sole issue for our consideration is whether Appellant was denied the right to effective assistance of counsel.

On November 30, 1983, Appellant broke and entered the Plaza Pharmacy in Jeffersonville Indiana, and stole a large quantity of drugs. He was apprehended as he attempted to leave the area. Appellant's first trial was based in part on the defense of entrapment and resulted in a hung jury. At Appellant's second trial, Defense Counsel again filed notice to rely on the defense of entrapment, as well as the names of various witnesses who allegedly would testify in support of the defense of entrapment. The trial court granted Appellant's motion to compel the attendance of the out-of-state witnesses, but none of the witnesses testified at trial. Appellant maintains his Defense Counsel's failure to call these witnesses resulted in a denial of his right to effective assistance of counsel.

Under our standard of review for alleged ineffective assistance of counsel, Appellant must show the alleged acts or omissions by Defense Counsel fell outside the wide range of competent professional assistance. There is a strong presumption that the attorney rendered adequate legal assistance. Appellant must show also that the attorney's errors had an adverse effect upon the judgment. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 692-693, U.S. reh. denied (1984), 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864; Bieghler v. State (1985), Ind., 481 N.E.2d 78, 96, reh. denied (1985), cert. denied (1986), --- U.S. ----, 106 S.Ct. 1241, 89 L.Ed.2d 349; Elliott v. State (1984), Ind., 465 N.E.2d 707, 710. Both poor performance and prejudice must be shown. Id. Appellant must affirmatively prove he was prejudiced by showing that but for the unprofessional errors, the result of the proceedings would have been different. Lawrence v. State (1984), Ind., 464 N.E.2d 1291, 1294.

In his brief, Appellant Geary states: "At his first trial, Geary presented the defense of entrapment and a number of witnesses were called to prove the defense; Geary himself testified and the jury was unable to return a verdict." We are not told what witnesses testified at the first trial, nor are we told what their testimony was. Appellant's arguments in presenting this issue seem to presume that the reason the jury was not able to reach a verdict of guilty was because of the entrapment defense. We, of course, do not know what the jury considered in reaching the results it did. Defense Counsel had to make some appraisal of the situation and frame his strategy accordingly in the second trial. The record shows Defense Counsel did take some preliminary steps to attempt to present the witnesses, but did not call them at the trial. Appellant alleges it was the negligence of Defense Counsel in handling the subpoena process of the out-of-state witnesses that resulted in the failure of the witnesses to appear. To make such a finding would require us to speculate on the facts presented to us. We could as well conclude that Defense Counsel determined the best strategy was not to call the witnesses. In reviewing the activities and results of the first trial, and in reviewing the nature of the witnesses and the risk of their testimony, Defense Counsel may have determined that Appellant stood a better chance without them. Matters of strategy and judgment alone are insufficient to...