Hough v. State

Decision Date30 December 1997
Docket NumberNo. 02S00-9305-PD-497,02S00-9305-PD-497
Citation690 N.E.2d 267
PartiesKevin Lee HOUGH, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
CourtIndiana Supreme Court

Kevin L. Likes, Likes & Associates, Auburn, David L. Doughten, Cleveland, for Appellant.

Pamela Carter, Attorney General, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, for Appellee.

SELBY, Justice.

Defendant Kevin Hough appeals his denial of post-conviction relief. At trial, defendant was convicted of two counts of murder and sentenced to death. On direct appeal, we affirmed the convictions and sentence. Hough v. State, 560 N.E.2d 511 (Ind.1990). Defendant sought postconviction relief. The post-conviction court granted the State's motion for summary judgment and denied defendant post-conviction relief.

Defendant raises six issues on this appeal: 1) Did defendant receive ineffective assistance of trial and appellate counsel? 2) Did the post-conviction court err in failing to grant an evidentiary hearing? 3) Did the trial court fail to consider relevant mitigating evidence? 4) Was defendant deprived of a fair trial due to erroneous jury instructions? 5) Did the alleged errors at trial act cumulatively to deny defendant a fair trial? 6) Is Indiana's death penalty statute unconstitutional? We answer all six of defendant's arguments in the negative and affirm the post-conviction court.

The facts of this case can be found in our opinion from defendant's direct appeal. Hough, 560 N.E.2d at 513-14. Briefly, we will state the facts pertinent to this appeal. A jury found defendant guilty of two counts of murder. In seeking the death penalty, the State argued as aggravating circumstances that defendant murdered two people in the present case, that he murdered them while committing or attempting to commit robbery, and that he had previously been convicted of another murder. The jury recommended the death penalty. The trial court, relying upon the same aggravating factors, sentenced defendant to death.

DISCUSSION

This case comes to us as an appeal from a grant of summary judgment by the post-conviction court. The summary judgment procedure that is available under Indiana Post-Conviction Rule 1(4)(g) is the same as under Trial Rule 56(C). State v. Daniels, 680 N.E.2d 829, 832 (Ind.1997). Under both rules, summary judgment should only be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Post-Conviction Rule 1(4)(g); Ind. Trial Rule 56(C). The moving party must designate evidence to prove that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. Daniels, 680 N.E.2d at 832. After such a showing Though it is not entirely clear, 1 defendant seems to set forth two reasons why the postconviction court erred in granting the State's summary judgment motion. First, defendant argues that there exist genuine issues of material fact and he was entitled to an evidentiary hearing. Second, defendant argues that the post-conviction court erred in its rulings on the law. We must, therefore, determine whether the trial court correctly concluded that there were no genuine issues of material fact and that the State was entitled to judgment as a matter of law.

                the burden shifts to the nonmoving party to show that there is a genuine issue of material fact.  Id. Any doubts about the existence of a fact or the inferences to be drawn therefrom are to be resolved in favor of the nonmoving party.  Id. A party appealing a grant of summary judgment must show the appellate court that the trial court erred.  Daniels, 680 N.E.2d at 832.   In determining whether the trial court erred, the appellate court is held to the same standard as is the trial court.  Id
                
I.

Defendant's first argument is that he received ineffective assistance of counsel, both at trial and on his direct appeal. One who pursues an ineffective assistance of counsel claim must prove both parts of the two part test as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, one must show that his counsel acted below an objective standard of reasonableness. Second, one must show that the substandard performance was so prejudicial as to deny him a fair trial. Potter v. State, 684 N.E.2d 1127 (Ind.1997). To establish the "prejudice" element, one must show a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. Spranger v. State, 650 N.E.2d 1117, 1121 (Ind.1995).

A.

As part of defendant's ineffective assistance of counsel claim, he contends that his trial counsel failed to make various objections. In order to prove that failure to object rendered the representation ineffective, defendant must show that the objection would have been sustained and that he was prejudiced by the failure to object. Potter, 684 N.E.2d at 1132.

Defendant begins by arguing that his counsel failed to object when the State made repeated reference to the jury's sentencing "recommendation" and failed to object to the introduction of the trial evidence at the penalty phase. Defendant argues that the use of "recommendation" was impermissible under Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), because using the word "recommendation" effectively absolved the jury of any moral responsibility in making its sentencing decision. As we have held before, it is not error to accurately describe to the jury that, under Indiana's death penalty statute, they give a sentencing recommendation to the judge, who then makes the final decision. Lowery v. State, 640 N.E.2d 1031, 1044 (Ind.1994). Similarly, the introduction of the trial phase evidence at the penalty phase is authorized by Ind.Code § 35-50-2-9(d) and has been approved by this Court. See Woods v. State, 547 N.E.2d 772, 794 (Ind.1989), reh'g granted on other grounds 557 N.E.2d 1325 (1990). Thus, neither objection would have been sustained.

Defendant further argues that his counsel's failure to object to the admission of a probable cause affidavit and a prior conviction entry rendered the representation ineffective. These pieces of evidence concerned defendant's prior murder conviction. Without citing to any authority, defendant argues that the evidence was both hearsay and irrelevant. However, the evidence was relevant to prove one of the alleged aggravators, a previous conviction for murder. Also, in light of the evidence and aggravating factors against defendant, any additional evidence contained in the affidavit and entry were not Defendant also argues that he received ineffective assistance because his counsel failed to object to improper closing arguments by the State. In order to show prejudice from prosecutorial misconduct, one must show first, that there was misconduct by the prosecutor and second, that the misconduct placed the defendant in grave peril. Lowery, 640 N.E.2d at 1038. Grave peril is "measured by the probable persuasive effect of any misconduct on the jury's decision and whether there were repeated instances of misconduct which would evidence a deliberate attempt to improperly prejudice the defendant." Id. (citing Smith v. State, 516 N.E.2d 1055, 1063 (Ind.1987)). To support this claim, defendant directs us to statements made by the prosecutor concerning 1) defendant as a sociopath, 2) defendant as a bad element who has committed crimes, carried guns, and ferried drugs, 3) the future dangerousness of defendant, 4) defendant's lack of remorse, and 5) the depreciation of the seriousness of the crimes if the jury did not recommend death. 2 The State concedes that several of these remarks were objectionable, and we agree. It is unfortunate that the State, armed with the evidence and the aggravating circumstances that it had, still resorted to potentially inflammatory statements. However, in the context of this trial we do not believe that defendant was placed in grave peril because, even without these remarks, the jury was still confronted with three substantial aggravating factors. See Lowery, 640 N.E.2d at 1038-39.

prejudicial. See Maisonet v. State, 448 N.E.2d 1052, 1055-56 (Ind.1983).

Defendant further argues, again without citation, that counsel failed to object when the court read to the jury the entire list of statutory mitigating circumstances. Defendant contends that this caused the jury to treat the existence of non-pertinent mitigators as an aggravating factor. We fail to see what is objectionable, at least as presented in this case, with telling the jury that it can consider any number of factors as mitigating. See Miller v. State, 623 N.E.2d 403, 410 (Ind.1993).

Defendant next argues that counsel failed to object to victim impact evidence and to the probation department's recommendation of death. In defendant's direct appeal, we held that the introduction of the victim impact evidence was not reversible error. Hough, 560 N.E.2d at 514-15. In so holding, we noted that the evidence consisted mostly of brief and unemotional recommendations read only by the judge and that there is no evidence that the judge considered the evidence in making his sentencing determination. Hough, 560 N.E.2d at 515. For the same reasons, we hold that the recommendation by the probation department did not prejudice the defendant.

Defendant argues, again without legal citation, that he was prejudiced by his counsel's failure to object to the manner in which one of the aggravating circumstances was presented to the jury. One of the aggravating circumstances alleged by the State was that defendant had previously been convicted of a different murder. When reading this aggravator, the court informed the jury that defendant had been found guilty of both murder and felony murder in that previous trial. However, the court specified that this constituted just one aggravating...

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