Humphrey v. State, 48A02–1508–PC–1238.

• Citation: 56 N.E.3d 84
• Decision Date: 23 June 2016
• Docket Number: No. 48A02–1508–PC–1238.,48A02–1508–PC–1238.
• Parties: Trondo L. HUMPHREY, Appellant–Petitioner, v. STATE of Indiana, Appellee–Respondent.
• Court: Court of Appeals of Indiana

56 N.E.3d 84

Trondo L. HUMPHREY, Appellant–Petitioner

v.STATE of Indiana, Appellee–Respondent.

No. 48A02–1508–PC–1238.

Court of Appeals of Indiana.

June 23, 2016.

Stephen T. Owens, Public Defender of Indiana, John Pinnow, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MAY

, Judge.

[1] Trondo L. Humphrey appeals the denial of his petition for post-conviction relief. As his trial counsel's assistance was ineffective and his petition is not barred by laches,¹ we reverse and remand.

Facts and Procedural History

[2] Humphrey was convicted of murder in 1996. Our Indiana Supreme Court recited the facts of the crime:

On the night of April 28–29, 1995, Benjamin Laughlin and Stephen Sites were driving around a neighborhood in Anderson looking for crack cocaine. Sites' account of events is summarized first. Sites was driving his truck. The two had been circling the same neighborhood for thirty to forty-five minutes when they saw three people in an alley. Believing the three to be drug dealers, Laughlin told Sites to pull into the alley. One of the three approached the truck on the passenger side and Laughlin asked the dealer to get in the cab to discuss a cocaine sale. As Sites drove, Laughlin and the dealer quickly exchanged words, the dealer drew a gun, Laughlin grabbed it, and the gun discharged. Sites saw the barrel of the gun but did not see a “flash” because the dealer “had the gun pushed up against [Laughlin].” Record at 253. The single shot struck Laughlin in the abdomen and the dealer jumped out of the moving truck and ran away. Sites testified that the dealer was young, black, had short hair, and was about five feet ten inches tall. However, Sites was unable to provide a more precise identification of the dealer and also could not identify his two comrades waiting nearby. Sites estimated that the dealer was in the truck for thirty to forty seconds. Sites drove Laughlin to a nearby hospital where he eventually died from the wound

. A forensic technician examined Sites' truck for fingerprints and blood spatters but was unable to recover any physical evidence or discernable fingerprints from the vehicle.

[3] Donnie Smith testified that he was drinking and smoking marijuana with [Humphrey] and Roosevelt Brooks on the night of the murder in Brooks' garage near the alley where the shooting occurred. The garage door was open so the three had access to the alley to sell drugs on the street. At some point a truck stopped outside the garage and [Humphrey] went outside to greet it, indicating to Smith that he believed the occupants were looking for cocaine. Smith heard the door of the truck open and close in the alley but testified that he did not hear any shots or actually see [Humphrey] approach or enter the truck. The truck then “peel[ed] out” and [Humphrey] returned to the garage, telling Smith that the “dude” tried to “gank him” or “get him.” Record at 278. Smith saw only the back of the truck and could not testify to its color or whether it was the vehicle driven by Sites that evening. At some point prior to this incident, but not in the garage that night, Smith had seen [Humphrey] carrying a gun.

[4] On June 16, 1995, Brooks, while in jail on an unrelated charge, gave an unsworn written statement to a police detective about the events of that night. According to the statement, Brooks was in his garage with someone he identified as [Humphrey] from a photographic lineup containing pictures of six black males. [Humphrey] went out to a blue truck with “white guys” inside, Brooks heard a “noise,” and [Humphrey] returned soon thereafter, stating that he had shot one of the men. Record at 310. At trial, Brooks testified that he knew [Humphrey] but was not with him or Smith on the night of the shooting. Brooks repudiated the statement, which had been admitted to impeach the credibility of his courtroom version, and testified in essence that it was fabricated due to police pressure.

Humphrey v. State, 680 N.E.2d 836, 837–38 (Ind.1997)

(footnote omitted).

[5] In his direct appeal,² Humphrey argued the trial court abused its discretion when it admitted into evidence Brooks' statement regarding Humphrey's participation in the murder and erred when it did not admonish the jury to consider the statement for impeachment purposes only.³ Our Indiana Supreme Court held Brooks' prior inconsistent statement was admissible for impeachment and, regarding the admonition, “had a proper objection been lodged to the instruction, the court would have been required to entertain it.” Id. at 840

(citation to the record omitted).

[6] On June 6, 2012, Humphrey filed a pro se petition for post-conviction relief and requested counsel. On March 14, 2014, Humphrey filed, via counsel, an amended petition for post-conviction relief, arguing his trial counsel was ineffective because 1) he did not object to the admission of Brooks' pre-trial statement on the correct grounds;⁴ 2) he did not request an admonition based on the admission of Brooks' pre-trial statement; 3) he did not object to the court's final instruction on prior inconsistent statements; 4) he “erroneously endorsed,” (App. at 29), the court's instruction regarding prior inconsistent statements; and 5) he did not tender a correct instruction on prior inconsistent statements.

[7] The post-conviction court held evidentiary hearings on Humphrey's petition on November 10, 2014, and December 22, 2014. On August 6, 2015, it denied Humphrey's petition, finding Humphrey's trial counsel was not ineffective.

Discussion and Decision

[8] Post-conviction proceedings are not “super appeals”; rather, they afford petitioners a limited opportunity to raise issues that were unavailable or unknown at trial and on direct appeal.

Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind.2013)

. Post-conviction proceedings are civil in nature, and petitioners bear the burden of proving their grounds for relief by a preponderance of the evidence. Id. We accept the post-conviction court's findings of fact unless they are clearly erroneous, but we do not defer to its conclusions of law.⁵

State v. Hollin, 970 N.E.2d 147, 151 (Ind.2012). We may not reweigh the evidence or assess the credibility of the witnesses. Id. at 150.

I. Laches

[9] Humphrey did not seek post-conviction relief until fifteen years after his direct appeal was decided. The post-conviction court determined his petition was not barred by laches, and that was not clearly erroneous.

[10] Because the State had the burden of proving laches as an affirmative defense, the applicable standard of review requires that we affirm unless we find the judgment clearly erroneous. Armstrong v. State, 747 N.E.2d 1119, 1120 (Ind.2001)

. This is a review for sufficiency of evidence. Id. We will not reweigh evidence or assess credibility of witnesses. Rather, we look only to the evidence and reasonable inferences favorable to the judgment, and we will affirm if there is probative evidence to support the post-conviction court's judgment. Id.

[11] “The equitable doctrine of laches operates to bar consideration of the merits of a claim or right of one who has neglected for an unreasonable time, under circumstances permitting due diligence, to do what in law should have been done.” Id. “For laches to apply, the State must prove by a preponderance of the evidence that the petitioner unreasonably delayed in seeking relief and that the State is prejudiced by the delay.” Id. (emphasis added).

[12] The post-conviction court determined “[t]he State did not present evidence on the unreasonable delay element.” (Findings of Fact and Conclusions of Law on Laches at 3.) It heard testimony by Humphrey's appellate counsel that he never would have talked to Humphrey about post-conviction relief. Counsel testified he did not raise ineffective assistance on direct appeal because “the conventional wisdom” was that “you don't raise ineffectiveness of trial counsel on—on a direct appeal.” (Tr. at 33

–34.) But counsel also said he was reluctant to raise ineffectiveness because he had been involved in a waiver hearing and “I would almost have been raising myself ineffective.” (Id. at 34.)

[13] As there was no evidence Humphrey knew post-conviction remedies were available to him, we decline the State's invitation to find he was “on bright-lights notice about this issue and sat on [his] hands for a decade and a half.” (Br. of Appellee at 16.) We acknowledge that the State need not

supply direct proof of petitioner's knowledge. Circumstantial evidence is sufficient to show state of mind. Facts from which a reasonable finder of fact could infer petitioner's knowledge may support a finding of laches.

* * * * *

While the evidence in some cases has provided the proverbial “smoking gun” of actual knowledge of post-conviction remedies, no one factor is controlling. Repeated contacts with the criminal justice system, consultation with attorneys and incarceration in a penal institution with legal facilities are all facts from which the fact finder may infer knowledge. The determination of sufficiency, of course, must be made by the trial court; if there is probative evidence to support its determination, we will affirm the trial court's judgment. The court is not obligated to infer knowledge from any particular set of circumstances, nor is it bound to accept petitioner's assertions of ignorance. The State must, however, present some objective facts from which the court may draw a reasonable inference of knowledge.

Perry v. State, 512 N.E.2d 841, 844–45 (Ind.1987)

(citation omitted), reh'g denied.

[14] As there was probative evidence to permit a determination Humphrey did not know post-conviction remedies were available to him, the State did not prove Humphrey's delay was unreasonable.⁶ Moreover, the post-conviction court expressly found the State's key witnesses were available to testify in...