Howey v. State, 49S00-8903-PC-237

Citation557 N.E.2d 1326
Case DateAugust 14, 1990
CourtSupreme Court of Indiana

Susan K. Carpenter, Public Defender, John Pinnow, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

This is an appeal from the denial of post-conviction relief. In 1976, appellant was convicted of First Degree Murder. The trial court sentenced appellant to life imprisonment. The conviction was affirmed by this Court. Howey v. State (1977), 267 Ind. 15, 366 N.E.2d 662.

Following a hearing on this petition, the trial court made thorough findings of fact and conclusions of law and denied post-conviction relief.

The petitioner in a post-conviction relief proceeding bears the burden of establishing the grounds for relief by a preponderance of the evidence, and the post-conviction relief court is the sole judge of the evidence and the credibility of the witnesses. Schiro v. State (1989), Ind., 533 N.E.2d 1201, cert. denied, --- U.S. ----, 110 S.Ct. 268, 107 L.Ed.2d 218. The reviewing court will not reverse the judgment of the post-conviction court unless the evidence on this point is undisputed and leads inevitably to a conclusion opposite that of the trial court. Id.

The post-conviction relief process is open to the raising of issues not known at the time of the original trial and appeal or for some reason not available to the defendant at that time. Bailey v. State (1985), Ind., 472 N.E.2d 1260. This Court stated in Langley v. State (1971), 256 Ind. 199, 210, 267 N.E.2d 538, 544:

"To unreservedly hold the door open for appellate review under the post conviction remedy rules, regardless of the circumstances which preceded, would perforce characterize post conviction relief as some sort of 'super-appeal' contrary to its intended function."

Appellant claims the trial court erred in denying his post-conviction relief where he was denied effective assistance of appellate counsel and trial counsel.

This Court in Aubrey v. State (1985), Ind., 478 N.E.2d 70, discussed the standard of review for effective assistance of counsel. See also Townsend v. State (1989), Ind., 533 N.E.2d 1215; Mato v. State (1985), Ind., 478 N.E.2d 57. As to appellant's contentions, we will examine each of the alleged inadequacies under the two-part test in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.

Appellant contends that his prior appellate counsel was ineffective in that he did not contest the denial of his motion to suppress regarding certain items found in a locker.

Sergeant George Battles was present when appellant and Sandra Lloyd were arrested in the parking lot of the Greyhound Bus Station. In the police station, Lloyd gave a statement. Thereafter Sergeant Jerry Campbell and two other officers returned with Lloyd to the Greyhound Bus Station and Lloyd pointed out one specific locker which was locked. Upon learning that the key had been flushed down the toilet, Campbell directed the person with the master key to open the locker. Inside the locker he found one large green suitcase, a small brown suitcase, and a blue coat.

During trial, a hearing was held as to the admissibility of these items. Sergeant Campbell testified that Lloyd told him what was in the locker, and the reason they had put the items in the locker was to get rid of them. Sandra Lloyd testified that she and appellant went to the bus station the day of the killing and put some items in a locker. Appellant later informed Lloyd that he had flushed the key down the toilet. The trial court eventually admitted the evidence.

A warrantless search is presumed unreasonable, and the State bears the burden to show that the search falls under an exception to the warrant requirement. Fisher v. State (1984), Ind., 468 N.E.2d 1365. One such exception is where consent to search is given by a third party having common authority over the premises. See Brooks v. State (1986), Ind., 497 N.E.2d 210. In the instant case, appellant and Lloyd acted together in this crime, the police acted according to the information received from Lloyd, and the locker was of mutual benefit to both of them because they did not want the items to be recovered. Although appellant maintains that the key was in his wallet when he was arrested and had not been flushed down the toilet, the key was never produced by either party before, during, or after the trial, nor does the record support appellant's claim. Instead, testimony was presented that appellant had disposed of the key. We find that Lloyd had the right to consent, and the trial court did not err in admitting this evidence.

Appellant contends his trial counsel was ineffective and lists several instances to support his position.

Appellant contends his trial counsel failed to adequately consult with him and failed to file motions for discovery prior to trial. This Court will not speculate about what may have been the most advantageous strategy, and isolated bad tactics or inexperience does not necessarily amount to ineffective assistance. Williams v. State (1987), Ind., 508 N.E.2d 1264. Appellant cites numerous cases to support his position. However, these cases are clearly distinguishable from the instant case in that appellant's trial counsel was in all respects effective and competent unlike those cases cited by appellant. In addition, appellant makes no showing of prejudice, and the record shows that trial counsel was adequately prepared.

Appellant maintains trial counsel failed to object when appellant wore jail clothes during the trial. He contends his attorney did not want to object to the jail clothing and delay the trial.

We note that the function of the post-conviction review rule, Ind.R.P.C.R. 1 is a special remedy whereby a party can present error which for various reasons was not available or known at the time of the trial or on direct appeal. Phillips v. State (1982), Ind., 441 N.E.2d 201. Post-conviction action is not a substitute for direct appeal and any issue which was or could have been addressed at trial or on direct appeal is not the proper subject of a post-conviction action. Music v. State (1986), Ind., 489 N.E.2d 949. If appellant is to prevail on a claim of ineffectiveness of counsel, he must show he was denied a fair trial when the conviction or sentence resulted from a breakdown in the adversarial process which rendered the result unreliable. Strickland, supra.

To meet this burden, appellant must overcome, by strong and convincing evidence, a presumption that counsel has prepared and executed his client's defense effectively. Williams, supra. As we noted above, this Court will not speculate about what may have been the most advantageous strategy. Williams, supra. During the post-conviction hearing, trial counsel stated he had no memory of what appellant wore at trial and his general practice was to advise his clients not to wear jail clothes during trial. Only if the evidence leads unerringly and unmistakably to an opposite decision, may the trial court's ruling be disturbed. See Bean v. State (1984), Ind., 467 N.E.2d 671; Williams v. State (1984), Ind., 464 N.E.2d 893. It cannot be said that the evidence was not sufficient to support the conviction.

Appellant contends that trial counsel's performance was deficient because he failed to object and raise as error a comment made by a State witness that appellant refused to give a statement to the police. He asserts that as a result of this comment the jury could have inferred that he did not cooperate with the police.

Sergeant Battles testified that, after obtaining arrest warrants for appellant and Lloyd, he arrested them at the bus depot. Thereafter, Lloyd gave a statement, and appellant was advised of his right but refused to give a statement. During this period of testimony, no objection was made. Instead, on cross-examination, trial counsel immediately began asking questions regarding Lloyd's statement. He then turned to his client's refusal and asked the following: "Isn't it also true that he told you that if he had an attorney present he would?" Battles responded that he did not recall. We find that this issue was available on direct appeal and was not raised, thereby waiving the issue. Sims v. State (1988), Ind., 521 N.E.2d 336.

Appellant also contends ineffective trial counsel for failure to object to the prosecutor's misconduct.

It is well settled that the conduct of opening and closing arguments, as well as the course of the trial, is within the sound discretion of the trial court. Ashford v. State (1984), Ind., 464 N.E.2d 1298. In final argument, it is only proper to comment upon the evidence elicited from the witness stand and presented by exhibits properly admitted into evidence....

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