J.J. v. State

• Decision Date: 14 December 2006
• Docket Number: No. 48A04-0510-PC-572.,48A04-0510-PC-572.
• Parties: J.J., Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

858 N.E.2d 244

J.J., Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 48A04-0510-PC-572.

Court of Appeals of Indiana.

December 14, 2006.

Susan K. Carpenter, Public Defender of Indiana, William D. Polansky, Deputy Public Defender Indianapolis, IN, for Appellant.

Steve Carter, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General Indianapolis, IN, for Appellee.

OPINION ON REHEARING

SHARPNACK, Judge.

In our memorandum decision handed down on June 9, 2006, we affirmed. Appellant J.J. has petitioned for rehearing stating his issue as follows: whether this court erred by concluding that J.J. was not denied effective assistance of trial counsel.¹ We grant J.J.'s petition for rehearing, vacate our memorandum decision of June 9, 2006, and reverse.

The relevant facts follow. M.E., a fifteen-year-old, lived with his parents, Dianne and Kimothy Fetty, in Anderson, Indiana. On March 20, 2000, after school, M.E. went to J.J.'s house, which was separated from M.E.'s house by a muddy cornfield. M.E., J.J., and D.S. drove around and then went to M.E.'s house to get some gas money. M.E., J.J., and D.S. went into Dianne and Kimothy's room where M.E.'s parents kept a coffee can with some change in it in a cabinet on the top of a dresser. M.E. found eight one hundred dollar bills sitting on top of a pile of change. M.E. laid the $800 aside and looked for some more change. J.J. picked up the $800, looked at it, and counted it. M.E. put some change in his pocket, put the $800 back in the can, and placed the can in the cabinet. The three boys left and put some gas into D.S.'s car. M.E. stayed with J.J. and D.S. for less than an hour before returning home. M.E. remained at the house all night.

The next morning, M.E. missed the bus for school. Kimothy came home at nine o'clock a.m. and took M.E. to school. The ride took five minutes. Kimothy then returned home, locked the house, and left for work. Kimothy left work at 2:30 p.m. and went to a friend's house until he picked up M.E. from school at around 4:20 p.m. Kimothy dropped M.E. off at home and went back to his friend's house. Kimothy returned home at around 6:10 p.m. because M.E. needed to be at a band concert by 6:30 that evening. Kimothy dropped M.E. off at the band concert and returned to his friend's house because his wife was out of town on a business trip.

Around 7:30 p.m., Kimothy arrived home to find Dianne had returned from her business trip. Dianne noticed that a chain had been ripped off of a ceiling fan light in the bedroom and change was all over the floor. There was also mud on the bed. Kimothy took his change out of his pocket, got the can from the cabinet, put the change in the can, and discovered that the $800 was missing. After realizing that the money was missing, Kimothy discovered that the basement door, which J.J. and D.S. always used when visiting, was unlocked.

When M.E. returned home, his parents were sitting in the living room and asked if anyone had been around the house. M.E. told his parents that J.J. and D.S. were at the house the day before. M.E.'s parents told him that the $800 was missing from the coffee can, and M.E. told his parents that "it was probably [J.J.] because he was the only one that knew it was there, [J.J.] and [D.S.]." Record of Proceedings at 92.

That same day, J.J. and D.S. went to Dave's Auto Service to buy a car. They both talked to David Lines during the transaction. While it was D.S. that filled out the paperwork and signed the receipt, J.J. handed $800 to Lines. M.E. called J.J.'s house and told Andrea Johnson, J.J.'s mother, about the theft. Two days later, J.J.'s mother returned the car to Lines via her ex-husband. Lines accepted the car and returned the money, which J.J.'s mother then gave to Kimothy.

The State charged J.J. with burglary as a class B felony² and theft as a class D felony.³ In late March 2000, Sergeant Brian Bell of the Madison County Police Department attempted to arrest J.J. on information that he was at an address on East Sumner Lake Drive. At the residence, Sergeant Bell knocked on the door, and J.J. answered the door. Sergeant Bell addressed J.J. by his first name, and initially J.J. did not respond and then said his name was Jeff. J.J. continued to insist that he was not J.J. After forty-five minutes to an hour, Sergeant Bell called Detective Hanna, who knew J.J., to the scene, and Detective Hanna confirmed J.J.'s identity.

The prosecutor requested the trial court to grant use immunity as a witness to D.S., and the trial court granted the prosecutor's request. During opening statement the prosecutor said, "You're going to hear from [D.S.] and I tell you right now [D.S.] is going to sit there and he is going to ... he is going to lie and lie and lie. And he's going to lie when he's confronted with the truth. We've taken his statement a couple of times now and I don't think the truth is in this boy. He makes things up as he goes along." Record of Proceedings at 74. D.S. testified that he and J.J. went to Kimothy and Dianne's house to get the money, J.J. went into the house and took the money, and then D.S. bought a car with the money. Neither the prosecutor nor J.J.'s counsel informed the jury that D.S. was testifying pursuant to a grant of use immunity. During closing argument, the prosecutor stated:

And [D.S.] was certainly more candid today when he testified in the sense that he cooks himself today.... And he told you today, he looked at you and told you, "yes, I did know what was going on." And that's what he didn't want to do yesterday but he's certainly been more candid. He is ... he has cooked himself on this burglary. Put himself right in the soup. Right in the pie. And that's where he's going to stay here for awhile until we decide what to do with him.

Id. at 186-187.

M.E. testified that J.J.'s mother called and told his parents that J.J. had just bought a car with $800. J.J.'s counsel did not object.

J.J. did not testify at trial. During closing argument, the prosecutor stated:

The bottom line is though have you heard any other evidence to contradict that story? Has anybody else took [sic] that witness stand and looked at you the way [D.S.] did and contradicted what he said as far as what happened? And you haven't.

Id. at 194-195. J.J.'s defense counsel did not object. The jury found J.J. guilty as charged. The trial court sentenced J.J. to fifteen years in the Indiana Department of Correction on the burglary conviction and three years on the theft conviction. The trial court ordered that the sentences be served concurrently. The trial court also ordered that five years be executed at the Madison County Work Release Facility and suspended ten years.

In his direct appeal, J.J. argued that the trial court abused its discretion in sentencing him. We affirmed. [J.J.] v. State, No. 48A02-0009-CR-597, slip op. at 2, 8, 745 N.E.2d 920 (Ind.Ct.App. March 21, 2001). J.J. filed a pro se petition for post-conviction relief. J.J. later filed an amended petition for post-conviction relief alleging that he received ineffective assistance of trial counsel because trial counsel: (1) failed to object to hearsay; (2) failed to elicit exculpatory testimony from J.J.'s mother; (3) failed to inform the jury that D.S. was testifying pursuant to a grant of use immunity; (4) failed to object to prosecutorial misconduct in the form of a comment during closing argument on the defendant not testifying; and (5) failed to object to an erroneous jury instruction that included a mandatory presumption.⁴

The post-conviction court entered the following findings of fact and conclusions thereon:

FINDINGS OF FACT

1. On March 21, 2000, [J.J.], along with [D.S.], broke and entered the dwelling of Kimothy Fetty and stole

$800.00 in United States currency. They then purchased a car with the proceeds of the burglary and theft.

2. [J.J.] was convicted by a jury in July, 2000, and sentenced to a fifteen year term.. [sic]

3. [J.J.] was represented at trial by Eric Saltzmann.

4. [J.J.] appealed his conviction, alleging sentencing error as his sole ground for relief. He was represented on appeal by Christopher Cage. His sentence was affirmed.

5. On December 11, 2004, [J.J.] filed an amended Petition for Post-Conviction Relief. An evidentiary hearing on his petition was held on March 6, 2005.

6. [J.J.] has alleged multiple grounds for relief: Ineffective assistance of trial counsel for failing to object to hearsay testimony that an Andrea Johnson told [M.E.'s] parents that [J.J.] had purchased a vehicle, [i]neffective assistance of trial counsel for failing to inform a jury that [D.S.]'s testimony was immunized, [i]neffective assistance of trial counsel for failing to introduce a receipt for the vehicle showing [D.S.]'s name, ineffective assistance of trial counsel for failing to object to the prosecutor's characterization of the evidence at trial as "uncontradicted," and ineffective assistance of trial counsel for failing to object to a jury instruction stating "Opening an unlocked door constitutes a break-in as does pushing an open door which is slightly ajar."

CONCLUSIONS OF LAW

1. In evaluating a claim for ineffective assistance of appellate counsel, the Court must inquire first if counsel's performance was reasonable considering all of the circumstances. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 80 L.Ed.2d 674 (1984). If the Court finds that counsel acted unreasonably, it must further inquire if the decision reached would reasonably likely have been different but for the error. Id. at 697, 104 S.Ct. 2052

2. Saltzmann was not ineffective for failing to object to the testimony of Andrea Johnson. Even if the objection should have been made, the isolated testimony does not prejudice the defense to the extent contemplated in Strickland.

3. Saltzmann was not ineffective in failing to elicit the fact that [D.S.]'s testimony was immunized. Even if the...