Hendricks v. State

• Decision Date: 08 June 2004
• Docket Number: No. 49A04-0307-PC-344.,49A04-0307-PC-344.
• Citation: 809 N.E.2d 865
• Parties: Michael HENDRICKS, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

809 N.E.2d 865

Michael HENDRICKS, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 49A04-0307-PC-344.

Court of Appeals of Indiana.

June 8, 2004.

Rehearing Denied July 21, 2004.

Joseph M. Cleary, Hammerle & Allen, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Christopher C.T. Stephen, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SULLIVAN, Judge.

Michael Hendricks appeals from the denial of his petition for post-conviction relief. He presents one issue for our review, whether he was denied the effective assistance of appellate counsel.

We affirm.

The facts of the case, as recited by this court in a memorandum decision affirming Hendricks' conviction upon direct appeal, follow:

"The evidence most favorable to the verdict reveals that 17 year-old Gena Hewitt changed her two year-old daughter H.'s diaper and put her to bed at 10:00 p.m. on September 14, 1994. Hewitt noticed nothing unusual about H.'s vagina. At midnight, Hewitt's boyfriend, 23 year-old Michael Hendricks (`Hendricks'), visited Hewitt at the house that Hewitt and H. shared with Hendricks' sister-in-law, Stephanie Hendricks (`Stephanie'). Hewitt and Stephanie asked Hendricks to drive them to the grocery store. Hendricks refused; however, he allowed the young women to borrow his car. While Hewitt and Stephanie went to the store, Hendricks stayed with H., who was asleep in the room that she shared with Stephanie.

The following morning when Hewitt changed H.'s diaper, Hewitt observed that the diaper was stained with blood and that H.'s vagina was lacerated. According to Stephanie, `it looked like [H.'s] insides was falling out.' (R. 855). Hendricks drove Hewitt and H. to his grandfather's house where several relatives looked at H.'s injury and told Hewitt to take her daughter to the hospital emergency room. Hendricks drove Hewitt and H. to St. Francis hospital. Shortly thereafter, H. was transferred by ambulance to Riley Hospital where Dr. Phillip Merk examined H.'s vagina. Dr. Merk found a penetrating vaginal injury which had occurred within the past 12 to 24 hours. Specifically, Dr. Merk described the injury as follows:

The major injury that was noted, and the place the bleeding was coming from, was from a tear or laceration, which started inside the vagina, interrupted or tore the hymen, and then extended down toward the anus. It went down to the muscle that surrounds the anus, went down to the sphincter, but not, not through it. And this was three centimeters in length, which was, is probably, oh, a little bit, inch and a quarter to an inch and a half in length.

(R. 1290-91). Dr. Merk further stated that the injury was caused by a penis or something similar to a penis, and that the type of force `would be something like falling or jumping in the air, legs spread wide open, and landing on something like a broom handle.' (R. 1341-42). H.'s life threatening injury required surgical repair.

After Dr. Merk had examined H., Riley Hospital social worker Cynthia Scott told Hewitt and Hendricks that the doctors suspected that H. had been molested. Scott further told Hewitt and Hendricks that she would need to speak with each one of them. Thereafter, Hendricks left the hospital and did not return. The following week, Hendricks stayed with various friends and relatives. During that time, Indianapolis Police Department officers attempted to contact Hendricks; however, the officers were unable to find him. A warrant for Hendricks' arrest was issued on September 22, 1994. Hendricks turned himself in the following day.

Hendricks was charged with child molesting as a class A felony. Following a pre-trial hearing, the court found that H. was unavailable to testify because she could not understand an oath. Therefore, the trial court allowed three witnesses to testify at trial regarding hearsay statements which H. made to them and which implicated Hendricks in the molestation. Specifically, Hewitt testified that when she asked H. who had hurt her, H. responded that it was `Daddy Michael.' (R. 957). Debra Hobson, H.'s paternal grandmother, testified that while she was at Riley Hospital changing H.'s diaper, H. started crying and told Hobson that she had a `booboo.' (R. 1507). Hobson asked her where the `booboo' was located, and H. lightly patted her vagina. Hobson asked H. how she got the `booboo' and H. responded that `Daddy Michael did the "booboo."' (R. 1057). Lastly, H.'s maternal grandmother, Carla Greenier, testified that while her son and H. were playing in the children's playroom at Riley Hospital, H. said `ooh.' Greenier asked H. what was wrong and who had hurt her. H. responded that it was `daddy.' According to Greenier, she had never heard H. refer to anyone other than Hendricks as `daddy.'

A jury convicted Hendricks of child molesting as a class A felony and the trial court sentenced him to 45 years." Hendricks v. State, 683 N.E.2d 650, slip op. at 2-4 (Ind.Ct.App. 1997).

Following his direct appeal, Hendricks filed a petition for post-conviction relief claiming that he was denied the effective assistance of appellate counsel, along with several other claims. His petition for post-conviction relief was denied on May 20, 2003.

Post-conviction proceedings do not afford a petitioner with an opportunity for a "super-appeal." Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind.2000), cert. denied 534 U.S. 1164, 122 S.Ct. 1178, 152 L.Ed.2d 120 (2002). Post-conviction proceedings provide an opportunity to raise issues which were not known to the petitioner at the time of the original trial or were not available upon direct appeal. Id. The petitioner must establish his grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). In appealing from the denial of post-conviction relief, the petitioner bears the burden to show that the evidence is without conflict and leads to a conclusion opposite that reached by the post-conviction court. Hackett v. State, 661 N.E.2d 1231, 1233 (Ind.Ct.App.1996), trans denied. The standard of review for a claim of ineffective assistance of appellate counsel is essentially the same as for trial counsel in that the defendant must show appellate counsel was deficient in his performance and the deficiency resulted in prejudice. Hooker v. State, 799 N.E.2d 561, 570 (Ind. Ct.App.2003). To satisfy the first prong, the petitioner must show that counsel's performance was deficient in that representation fell below an objective standard of reasonableness, committing errors so serious that petitioner did not have the "counsel" guaranteed by the Sixth Amendment. McCary v. State, 761 N.E.2d 389, 392 (Ind.2002),reh'g denied. To show prejudice, the petitioner must present a reasonable probability that but for counsel's errors the result of the proceeding would have been different. Id. However, because the two components are separate and independent inquiries, "`[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice... that course should be followed.'" Landis v. State, 749 N.E.2d 1130, 1134 (Ind.2001) (quoting Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

Ineffective assistance of appellate counsel claims generally fall into three basic categories: (1) denial of access to an appeal, (2) waiver of issues, and (3) failure to present issues well. Hooker, 799 N.E.2d at 570. The waiver of issues and failure to present issues well form the bases of Hendricks' arguments.

To show that counsel was ineffective for failing to raise an issue upon appeal, the defendant must overcome the strongest presumption of adequate assistance. Id. To evaluate the performance prong when counsel waived issues upon appeal, we apply the following test: (1) whether the unraised issues are significant and obvious from the record, and (2) whether the unraised issues are "clearly stronger" than the raised issues. Id. at 571. If that analysis demonstrates deficient performance by counsel, the court then examines whether the issues which appellate counsel failed to raise would have been more likely to result in reversal or an order for a new trial. Id.

The first issue upon which Hendricks relies is the failure of his appellate counsel to challenge the trial court's decision to allow the testimony of three witnesses relaying statements made by H. which indicated that Hendricks had molested her and the admission of a taped interview with H. by a police officer. Hendricks asserts that the information was inadmissible hearsay and that its admission violated the Confrontation Clause of the federal Constitution.

Indiana Code § 35-37-4-6 (Burns Code Ed. Repl.1998) authorizes the admission of a statement or a videotape of a child of less than fourteen years of age in certain criminal actions, including those involving sex crimes. Subsection (c) provides that:

"A statement or videotape that:

(1) Is made by a person who at the time of trial is a protected person;

(2) Concerns an act that is a material element of an offense listed in subsection (a) that was allegedly committed against the person; and

(3) Is not otherwise admissible in evidence;

is admissible in evidence in a criminal action for an offense listed in subsection (a) if the requirements of subsection (d) are met."

The requirement of subsection (d), as applicable here, was met in that the trial court concluded that H. was incapable of understanding the nature and obligation of an oath. However, in order for the statement or videotape to be admissible, I.C. § 35-37-4-6(e) requires that the protected person be available for cross-examination at the hearing in which the trial court determined that the time, content, and circumstances of the statement or videotape provide sufficient indications of reliability or when the statement or videotape was made. Hendricks asserts that H. was not available for cross-examination because she...