Hunter v. State

• Decision Date: 20 September 1991
• Docket Number: No. 82S00-9009-CR-587,82S00-9009-CR-587
• Citation: 578 N.E.2d 353
• Parties: Joseph Ruben HUNTER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 353

578 N.E.2d 353

Joseph Ruben HUNTER, Appellant, v. STATE of Indiana, Appellee.

No. 82S00-9009-CR-587.

Supreme Court of Indiana.

Sept. 20, 1991.

Rehearing Denied Nov. 22, 1991.

Terry A. White, Olsen, Niederhaus, Labhart & White, Evansville, for appellant.

Linley E. Pearson, Indiana Atty. Gen. and Preston W. Black, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of Count I, Dealing in a Schedule II Narcotic Drug, a Class A felony, and Count II, Dealing in Cocaine, a Class A felony. He also was found to be a habitual offender. Appellant was sentenced to thirty-five (35) years each on Counts I and II, the sentences to run concurrently. Count I was enhanced by thirty (30) years by reason of his habitual offender status, the total executed time thus being sixty-five (65) years.

The facts are: On November 13, 1989 at approximately 6:00 p.m., the Evansville Police Department executed two search warrants to search apartments C and D at 1726 Garvin Street in Evansville, Indiana. Apartment C, an upstairs apartment, was rented by Wanda Shelton, appellant's codefendant, and apartment D, located on the first floor, was rented by appellant under the name of Bill White.

Upon executing the warrants, the officers knocked and announced their presence at apartment C. When they heard commotion inside the apartment, they kicked the door open because they were concerned that evidence was being destroyed. Upon entering, the officers observed codefendant Marita Holland standing in the bathroom throwing Dilaudid tablets out an open window. Appellant was found behind the door, and a search of his pockets disclosed a plastic bag containing $2,029. Other individuals found in the house included Wanda Shelton, Diane Knight, Charles Turpin, and two children. Neither Turpin nor Knight was arrested by the police.

Outside the apartment, the police collected ninety-one Dilaudid tablets from the ground and the roof near the open bathroom window where Holland had thrown them. On a table in the apartment, the officers located a gray box with the lid off. Inside the box were several keys on a key ring, a bag containing twenty grams of cocaine, approximately $500 worth of food stamps, a glass test tube containing cocaine residue, two razor blades with cocaine residue on them, a white powder consisting of a non-controlled substance, approximately $31 in change, and a billfold containing several cards including identification cards bearing the names of Marita Harper and Joseph Ruben Hunter.

Under the couch, the officers found twenty-six bags of cocaine and fourteen Dilaudid tablets. Other evidence found in the apartment included roach clips for smoking marijuana, two syringes, a spoon, a tally sheet, razor blades, a bottle containing an unknown liquid, and thirty-seven grams of a non-controlled substance.

The officers then searched the other apartment and found numerous items including: a hand-held police scanner, test tubes containing cocaine residue, white powder, syringes, razor blades, and two brown bottles resembling others found outside the first apartment with the Dilaudid tablets. During the search, appellant had asked officers if they would give his motorcycle key to Turpin, which they agreed to do. Officer Wilkins testified that the key was on the same key ring as the key fitting the lock on the grey box.

Appellant claims he was denied effective assistance of trial counsel and lists numerous instances to support his position.

This Court in Williams v. State (1987), Ind., 508 N.E.2d 1264, 1266 stated:

"To succeed on a claim of ineffectiveness of counsel, appellant must prove that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Appellant also must prove that counsel's failure to function was so prejudicial as to deprive him of a fair trial. A fair trial is denied when the conviction or sentence resulted from a breakdown in the adversarial process that rendered the result unreliable. (Citation omitted.) To meet his burden, appellant must overcome by strong and convincing evidence a presumption that counsel has prepared and executed his client's defense effectively. (Citation omitted.)"

Appellant argues that counsel failed to call witnesses who would have testified that the $2,029 found in his pocket were winnings from a racetrack. As appellant notes, the decision on which witnesses to call generally is a matter of strategy on counsel's part, and we will not second-guess counsel's decision unless the choice fell below objective professional standards. See Ford v. State (1988), Ind., 523 N.E.2d 742. In addition, appellant failed to submit any affidavits showing what the witnesses would have said. Thus we have no idea what the witnesses would have testified about and have no basis to judge counsel's performance. See McBride v. State (1987), Ind., 515 N.E.2d 865. Under the circumstances, we cannot say counsel's performance was ineffective.

Appellant contends that counsel failed to obtain the key to appellant's motorcycle to test the credibility of Officer Wilkins' testimony. Officer Wilkins testified that appellant requested the key be removed from the gray box on the table and be given to Turpin so he could drive away on the motorcycle. He alleges that this allowed the jury to infer that because appellant had possessions inside the box, he must have owned the box. Here the officer's testimony helped link appellant to possession of the box. Appellant has not shown how trial counsel's representation in the matter was ineffective.

Appellant argues trial counsel was ineffective in agreeing to a stipulation. After a lengthy side-bar conference, both defense counsel and the prosecutor agreed that the jury should be informed that appellant's codefendant, Wanda Shelton, a/k/a Wanda Butler, had appeared in person in court and agreed to plead guilty to a Class B felony of dealing in a Schedule II narcotic. In exchange for that plea, she was to be imprisoned. Although the agreement included a fifteen (15) year sentence, both sides agreed that the length of the sentence to be imposed should not be stated to the jury. The judge informed the jury as agreed by counsel.

Appellant correctly observes that evidence of a conviction or guilty plea of others charged with the same offense as the defendant is not substantive evidence of the defendant's guilt or innocence. See Hughes v. State (1989), Ind., 546 N.E.2d 1203. However, whether the admission of a codefendant's conviction requires reversal depends upon the facts and circumstances surrounding the case. Moore v. State (1987), Ind., 515 N.E.2d 1099. In the instant case, as in Moore, there was only a brief mention of Shelton's conviction made at the conclusion of the evidence. Counsel for appellant obviously felt a need to explain the named codefendant's absence from the trial. We will not second-guess his strategy here.

Appellant argues trial counsel was ineffective in failing to object to the reading of Officer Kathleen Pritchett's two depositions in evidence. This was due to the fact that Officer Pritchett was delivering a child at the time of the trial.

In order to establish that the failure to object to evidence admitted at trial resulted in inadequate representation, appellant must show that counsel's objections would have been sustained had they been made. See Siglar v. State (1989), Ind., 541 N.E.2d 944. As a general rule, a deposition may be used at trial in lieu of in-court testimony where it is shown that the witness is unavailable and the testimony shows adequate indicia of reliability. Coleman v. State (1989), Ind., 546 N.E.2d 827. The trial court did not err in admitting the deposition in light of the fact that Officer Pritchett was unavailable at the time of trial due to her pregnancy.

Appellant also contends trial counsel should have objected during Officer Pritchett's deposition at two different times. The first time is where Officer Pritchett indicated she had seen pictures of appellant previously when she had worked undercover regarding activities on Canal Street. The record reveals the following occurred:

"Q: A minute ago you said that when you came in the apartment you saw Joe Hunter and you recognized him. How did you recognize him?

A: I'd seen photos of him before.

Q: Was that in preparation for the search?

A: No sir, prior to that.

Q: Why had you seen photos of him?

A: Prior information from my activities on Canal Street.

Q: How long ago had that been, prior to the search?

A: I'd been working that district for four years undercover.

Q: When was it that you looked at the pictures?

A: I had them in my possession for many years, since probably '85.

Q: What I'm asking you is, when did you last look at them? Did you look at them on more than one occasion.

A: Yes sir.

Q: When did you last look at them?

A: I don't know sir."

The questioning was improper; however, this Court on numerous occasions has stated that isolated instances of poor strategy or bad tactics do not necessarily amount to ineffectiveness of counsel. See Rozika v. State (1988), Ind., 520 N.E.2d 1267. We cannot say that counsel's actions here amounted to ineffective assistance of counsel.

Appellant contends that trial counsel failed to object when in her deposition, Officer Pritchett made reference to a statement in the affidavit of probable cause which indicated that the lock box and motorcycle key belonged to appellant. However, the record shows that Officer Wilkins' testimony indicated that the key to the lock box and app...