Henderson v. State

• Decision Date: 05 May 2022
• Docket Number: 21A-PC-1027
• Parties: Joseph Henderson, Appellant-Petitioner, v. State of Indiana, Appellee-Respondent
• Court: Indiana Appellate Court

Joseph Henderson, Appellant-Petitioner, v. State of Indiana, Appellee-Respondent

No. 21A-PC-1027

Court of Appeals of Indiana

May 5, 2022

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata collateral estoppel, or the law of the case.

Appeal from the Marion Superior Court The Honorable Anne Flannelly Magistrate Trial Court Cause No. 49G04-1801-PC-3148

Appellant Pro Se Joseph Henderson Pendleton Correctional Facility Pendleton, Indiana

Attorneys for Appellee Theodore E. Rokita Attorney General Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana

MEMORANDUM DECISION

Crone, Judge.

Case Summary

[¶1] Joseph Henderson was convicted of two counts of murder and two counts of class B felony robbery and petitioned for post-conviction relief (PCR). He now appeals the denial of his PCR petition, claiming that the post-conviction court erred in determining that he had not met his burden to establish that he was denied effective assistance of both trial and appellate counsel. Finding no clear error, we affirm.

Facts and Procedural History

[¶2] The facts underlying Henderson's crimes were summarized on direct appeal as follows:

During the evening of October 14, 1998, Henderson and Mario, who was Henderson's marijuana supplier, went to the home of Jermaine Miller, to whom Henderson had agreed to sell $2, 400 worth of marijuana. Waiting at Miller's home were Miller's girlfriend and three other male individuals, William Clark, Ricky Harris, and Darrell Odom. Henderson informed them that he did not have the marijuana with him and that he wanted to make sure that Miller had the money. They all counted the $2, 400[, ] and Henderson asked if he could take it and go get the marijuana. Miller, Harris, and Odom refused[, ] so Henderson agreed to bring it by later that evening. Henderson later called and said that he had to throw the marijuana out because he had been pulled over by the police.

The following day Henderson went to dinner with his mother. On the way home, he saw Brett Dorsey, Andrea Itce, and Ashley Curtis at the home of Ashley's ex-boyfriend. Henderson's mother dropped him off there. Henderson approached Dorsey and, while whispering in his ear, asked him if he wanted to make $500. Henderson told Dorsey that he needed a driver.

The four got into Dorsey's car and stopped by Henderson's mother's home, where Henderson had been staying for a couple of weeks. Henderson went inside and put on a hooded sweatshirt. They then went to Dorsey's house where they watched TV. While there, Henderson took out the handgun which he was carrying and cleaned it. To clean it, he put on rubber gloves and wiped down the gun, the clip, and the bullets with a paper towel.

Henderson received a page and called the designated number. Henderson told Dorsey that he had spoken to the people he needed to meet and asked Dorsey to drive him to a local Shell gas station. After arriving at the Shell station, Henderson approached Miller and Odom, who was driving the other car, and told them that they needed to get rid of the other passenger in the car because he wanted to deal on a one-to-one basis. Henderson and Dorsey then returned to Dorsey's apartment while Odom and Miller took the other passenger home. Miller and Odom then paged Henderson[, ] and Henderson and Dorsey left to meet them at a McClure gas station.

At the gas station, Henderson spoke with Miller and Odom[, ] and then they left to go to a different location. Miller and Odom followed Dorsey's car to the back of an industrial complex that Henderson had discussed earlier with Dorsey, Andrea, and Ashley. Both Dorsey and Odom backed their cars up to a building. Henderson exited Dorsey's vehicle and walked around to the passenger side of Odom's car. Miller got out and Henderson climbed into the backseat. Miller then got back into the car[, ] and Henderson asked to see the money so that he could count it. Miller refused to let him count it; rather, he counted it himself. Henderson then exited the vehicle and returned to Dorsey's car. He reached into the backseat and retrieved a black bag which belonged to Dorsey. He removed the handgun from his waistband and placed it into the bag and returned to Odom's car. Once Henderson was in the backseat, Dorsey saw Odom turn toward Henderson and make some movements. Henderson then pulled out the handgun and shot Odom in the head. Henderson then shot Miller twice in the head. As he exited the car, Henderson took approximately $600 which he stated was lying on the ground outside of the car. Henderson jumped into Dorsey's car[, ] and they left the scene. They first returned to Dorsey's apartment and then took Andrea and Ashley over to Mario's home where Dorsey purchased marijuana for the group to smoke.

Henderson was subsequently charged with six counts, two counts of murder for the killing of Miller and Odom, two counts of felony murder for causing the deaths of Miller and Odom while committing robbery, and two counts for the robbery of Miller and Odom. At his first trial [held on October 25-28, 1999], the jury returned a guilty verdict to the charge of murder of Miller but could not reach a verdict on the other charges and the trial court declared a mistrial on the remaining charges. He received a sentence of 65 years for his conviction, with five years suspended. ….

At the second trial [held on October 21-23, 2002], Henderson was charged with the remaining five counts and was found guilty of each one by the jury. The guilty verdicts for the felony murder of Odom and Miller were then dismissed by the trial court for reasons of double jeopardy.^[[1] The trial court then sentenced Henderson to sixty years incarceration for the murder of Odom to be served concurrent to the sixty-year executed sentence for the murder of Miller. Henderson was also ordered to serve concurrent twenty-year sentences for the two robbery convictions. The sentences for the robbery convictions were ordered to be served consecutive to the sentences for both murders.

Henderson v. State, 795 N.E.2d 473, 475-77 (Ind.Ct.App. 2003) (footnotes omitted), trans. denied (2004).

[¶3] Henderson appealed his convictions from the second trial as well as his conviction from the first trial. He argued that the trial court abused its discretion by improperly instructing the jury on self-defense and by denying his request to instruct the jury on theft. This Court affirmed his convictions. Id. at 482.

[¶4] On January 26, 2018, Henderson, pro se, filed a PCR petition alleging ineffective assistance of both trial and appellate counsel. He argued that trial counsel provided ineffective assistance by (1) representing him at the second trial when counsel had a conflict of interest; (2) violating attorney-client confidentiality; (3) failing to impeach the forensic pathologist during the second trial; (4) failing to move for a mistrial at the end of the second trial due to juror misconduct; (5) failing to request an instruction on reckless homicide; (6) failing to object to a juror in the second trial who knew Henderson; and (7) failing to object to prosecutorial misconduct during closing argument. Henderson argued that appellate counsel was ineffective by failing to challenge (1) the sufficiency of the evidence supporting the robbery convictions and (2) the appropriateness of his sentence. At the PCR hearing, the sole witness was Henderson's trial counsel Andrew Maternowski. The post-conviction court issued findings of fact and conclusions of law denying Henderson relief on all claims. This appeal ensued. Additional facts will be provided as necessary.

Discussion and Decision

[¶5] "Post-conviction proceedings are civil proceedings in which a defendant may present limited collateral challenges to a conviction and sentence." Gibson v. State 133 N.E.3d 673, 681 (Ind. 2019) (citing Ind. Post-Conviction Rule 1(1)(b)), cert. denied (2020). "The scope of potential relief is limited to issues unknown at trial or unavailable on direct appeal." Id. A defendant who files a petition for post-conviction relief "bears the burden of establishing grounds for relief by a preponderance of the evidence." Ind. Post-Conviction Rule 1(5); Humphrey v. State, 73 N.E.3d 677, 681 (Ind. 2017). Because the defendant is appealing from the denial of post-conviction relief, he is appealing from a negative judgment:

Thus, the defendant must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision. In other words, the defendant must convince this Court that there is no way within the law that the court below could have reached the decision it did. We review the post-conviction court's factual findings for clear error, but do not defer to its conclusions of law.

Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013) (citations and quotation marks omitted). We will not reweigh the evidence or judge the credibility of witnesses and will consider only the probative evidence and reasonable inferences flowing therefrom that support the post-conviction court's decision. Hinesley v. State, 999 N.E.2d 975, 981 (Ind.Ct.App. 2013), trans. denied (2014).

[¶6] Here, Henderson has chosen to proceed pro se, both below and in this appeal. "It is well settled that pro se litigants are held to the same legal standards as licensed attorneys." Lowrance v. State, 64 N.E.3d 935 938 (Ind.Ct.App. 2016), trans. denied (2017). This means that they must follow our established rules of procedure and accept the consequences when they fail to do so. Id. This Court will not become an "advocate for a party, or address arguments...