Grinstead v. State

• Citation: 845 N.E.2d 1027
• Decision Date: 20 April 2006
• Docket Number: No. 28S01-0501-PC-16.,28S01-0501-PC-16.
• Parties: Jerry GRINSTEAD, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
• Court: Indiana Supreme Court

Page 1027

845 N.E.2d 1027

Jerry GRINSTEAD, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).

No. 28S01-0501-PC-16.

Supreme Court of Indiana.

April 20, 2006.

COPYRIGHT MATERIAL OMITTED

Susan K. Carpenter, Public Defender of Indiana, Linda G. Nicholson, Deputy Public Defender, Indianapolis, for Appellant.

Steve Carter, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General, Indianapolis, for Appellee.

SHEPARD, Chief Justice.

Appellant Jerry Ray Grinstead was convicted of murdering Joseph Cross. Grinstead has raised claims of ineffective assistance of counsel in a petition for post-conviction relief. Among other points, he asserts that his counsel's performance was deficient by stipulating to the admission of hearsay statements made by a co-participant in the murder of Cross in exchange for the State's promise not to call that co-participant as a witness. The post-conviction court held that counsel's decision to agree to the stipulation and thus keep the co-conspirator off the stand was a reasonable one and denied the petition. We agree.

Facts and Procedural History

On the night of June 3, 1994, Jerry Ray Grinstead and his cousin Charles Alan Edmonson took Joseph Cross to a secluded area where he was beaten to death. Grinstead v. State, 684 N.E.2d 482, 484-85 (Ind.1997). Both men were present while Cross was being beaten, though they dispute which of them delivered the fatal blows. Id.

During Grinstead's murder trial, his counsel stipulated to the admission of three statements made by Edmonson that gave details of the crime. In return, the State apparently agreed that it would not call Edmonson as a witness. The first of Edmonson's statements was a fabricated alibi. Id. at 484-85 nn. 1 & 4. In the other statements, made first to a police investigator, and then at a sentencing hearing following his guilty plea, Edmonson placed substantial blame for the murder on Grinstead. Id. Although Edmonson was uncertain as to which of the two had actually struck the fatal blow, he claimed that both Grinstead and he had participated in the attack including striking Cross with a tire iron. (R. at 474, 502-03.)

Grinstead testified at trial with a significantly different tale. He admitted to being the first to strike Cross and causing him to fall, but denied any further involvement, claiming that only Edmonson had kicked Cross and hit him with the tire iron. In fact, Grinstead claimed that after throwing the first punch, he spent the duration of the attack "hollering at him [Edmonson] not to do it." (R. at 1086.) Grinstead did admit helping Edmonson drag Cross' body from the area of the murder (R. at 1088), and later testified that while he had not taken Cross' wallet, he had thrown it away as he and Edmonson left the scene. (R. at 1103.)

The jury found Grinstead guilty of murder, conspiracy to commit murder, theft, and conspiracy to commit theft. The court sentenced Grinstead to a total of 108 years. On direct appeal, Grinstead raised several contentions including a double jeopardy claim. We affirmed. See Grinstead, 684 N.E.2d at 485-87.

Grinstead's present petition claims that both his trial counsel and appellate counsel were ineffective. The post-conviction court rejected Grinstead's petition and held that both lawyers had rendered effective assistance. The Court of Appeals reversed, finding that the cumulative effect of the errors by Grinstead's trial counsel had been sufficient to undermine confidence in the trial outcome. See Grinstead v. State, 816 N.E.2d 99, 28A01-0402-PC-69, slip op. at 12-13 (Ind.Ct.App. Sept. 23, 2004) vacated. It ordered a retrial. Id. We granted the State's petition to transfer.

I. Grinstead's Claims About Trial Counsel

Grinstead's contentions about his trial lawyer involve his counsel's failure to raise objections during the trial or questionable strategy and tactics employed by counsel during the trial. Grinstead largely focuses on seven different alleged failures. We address each of these claims.

Claims of ineffective assistance of trial counsel are generally reviewed under the two-part test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Thus, a claimant must demonstrate that counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms, and that the deficient performance resulted in prejudice. Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. Prejudice occurs when the defendant demonstrates that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. A reasonable probability arises when there is a "probability sufficient to undermine confidence in the outcome." Id.

Appellate review of the post-conviction court's decision is narrow. We give great deference to the post-conviction court and reverse that court's decision only when "the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the postconviction court." Prowell v. State, 741 N.E.2d 704, 708 (Ind.2001).

Although the two parts of the Strickland test are separate inquires, a claim may be disposed of on either prong. See Williams v. State, 706 N.E.2d 149, 154 (Ind.1999). Strickland declared that the "object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,... that course should be followed." 466 U.S. at 697, 104 S.Ct. 2052.

It is thus fairly common practice in Indiana to address only the prejudice prong, as it frequently represents a short cut. Doing that may save time, but it can also degrade the post-conviction process into a super appeal, just the thing we say post-conviction is not. Reviewing courts should remain mindful that there are occasions when it is appropriate to resolve a post-conviction case by a straightforward assessment of whether the lawyer performed within the wide range of competent effort that Strickland contemplates.

A. Polygraph Examination and Testimony

Grinstead raises two related contentions about the admission of the polygraph evidence in his trial. First, he contends that counsel should not have permitted him to take the exam when there was no "strategic justification" for doing so in light of the fact that the stipulation agreement did not provide that the State would dismiss the charges if the results of the exam demonstrated Grinstead was being truthful. (Br. Pet'r.-Appellant at 12-13.)

We find this contention entirely baseless. It rests largely on the premise that the State would have been willing to drop all charges if Grinstead proved truthful. While such agreements may be reached when lesser offenses are at issue, it seems far from certain that a prosecutor would drop all charges against a defendant in a murder investigation solely on the basis of polygraph evidence (which Grinstead himself labels "inherently unreliable."). (Br. Pet'r.-Appellant at 13.)

As counsel testified at the post-conviction hearing, the stipulation he agreed to at the time was a standard stipulation, and his experience was that an agreement to drop charges was "generally not put in a stipulation in Greene County." (P.C. Tr. at 13.) This certainly suggests that counsel's performance on this point was within professional norms.

Moreover, the post-conviction testimony revealed that the decision to submit to a polygraph examination was Grinstead's, not his counsel's. (P.C. Tr. at 11.) In point of fact, counsel appeared to take numerous steps to safeguard Grinstead from an unfavorable result. In particular, counsel attempted to ensure that the examiner was one he had worked with before and whom he trusted enough as an examiner to "allow any of [his] clients/defendants to be given the test by the State of Indiana." (P.C. Tr. at 14, 26.) Counsel also made clear to Grinstead the danger of submitting to the exam, stating that his general recommendation to clients considering doing so is that "either you are 100% squeaky clean on this or you do not take it period, it can only hurt you." (P.C. Tr. at 11-12.) Counsel advised Grinstead that he could not use subterfuge to alter the results of the exam. (P.C. Tr. at 11-12.)

These warnings were ultimately about all that counsel could have done. It was Grinstead's choice to submit to the exam and his choice to misrepresent his level of involvement in the crime to both his lawyer and the examiner. In fact, Grinstead admitted at trial that it was his "not being truthful and not having told [that he had been the first to hit Cross] before [that] effected the polygraph outcome."¹ (R. at 1090.)

As for whether the only reasonable strategy might have been for the lawyer to put his foot down and bar his client from participating, counsel acknowledged that he considered at least two justifications for allowing Grinstead to submit to the exam. First, although there was no formal agreement with the State to drop the charges, counsel believed a positive result could be used to bargain for a reduction in the charges. (P.C. Tr. at 12.) Counsel also thought a result showing Grinstead's truthfulness could be used at trial to bolster his client's credibility. (P.C. Tr. at 12.)

Ultimately, we cannot conclude that the post-conviction court was wrong, based on the evidence before it, in deciding that allowing Grinstead to submit to a polygraph exam was within professional norms.

Grinstead also faults his counsel's failure to object to certain testimony by the polygraph examiner. He says his counsel should have objected when examiner State Police Officer Mark James² said, "I believe that Mr. Grinstead did in fact hit Mr. Cross and I believe that he did in fact help kill Mr. Cross." (R. at 1002.) The State concedes that these statements crossed the line of permissible testimony by...