Jarrett v. State

Decision Date17 October 1991
Docket NumberNo. 26A01-9104-PC-114,26A01-9104-PC-114
PartiesWilliam JARRETT, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
CourtIndiana Appellate Court

Jane Ruemmele, Indianapolis, for appellant-petitioner.

Linley E. Pearson, Atty. Gen., Geoff Davis, Deputy Atty. Gen., Indianapolis, for appellee-respondent.

BAKER, Judge.

Defendant-appellant William Jarrett was convicted of child molesting by deviate conduct, a Class B felony, 1 and child molesting by fondling, a Class C felony. 2 At the time of the offenses, the victim, T.M., was one month shy of his sixth birthday. Our supreme court affirmed Jarrett's convictions on direct appeal, Jarrett v. State (1984), Ind., 465 N.E.2d 1097. Jarrett subsequently filed a petition for post-conviction relief, which was denied. Jarrett now appeals to this court the denial of his petition.

Jarrett raises nine issues for our review, which we restate as:

I. Whether he received effective assistance of trial counsel.

II. Whether he received effective assistance of appellate counsel in his direct appeal.

III. Whether his convictions were supported by sufficient evidence.

We affirm.

FACTS

The evidence most favorable to the verdict, as found by our supreme court, Jarrett, supra, reveals that on June 11, 1982, T.M. was left alone with Jarrett in Jarrett's trailer. While in bed, Jarrett made T.M. fondle Jarrett's penis, he stuck his penis in T.M.'s mouth, and he attempted anal intercourse. Jarrett warned T.M. not to tell anyone. When T.M.'s mother arrived at the trailer T.M. was crying. After his visit with Jarrett, T.M. began telling his parents he did not like Jarrett. Within two weeks after the visit, T.M.'s parents discovered T.M. attempting anal intercourse with another young boy. When asked by his parents who showed him how to do it, T.M. identified Jarrett. In turn, T.M. reported being molested by Jarrett to his father, mother, Gibson County Deputy Sheriff George Ballard, and pediatrician Dr. Kenneth Buehlman.

Evidence presented at trial showed Jarrett previously molested T.M. on an outing in May of 1982, fondled a 14-year-old boy in 1981, was convicted in 1974 for assault and battery with intent to gratify sexual desires for making his nephew perform oral sex on him, and attempted, while naked, to pull his nephew into bed with him in 1973.

The jury convicted Jarrett of two counts of child molesting and the trial court sentenced him to 20 years' imprisonment for the Class B felony and five years' imprisonment for the Class C felony, to be served consecutively. Throughout his trial, sentencing, and direct appeal, Jarrett was represented by the same attorney, Barry Standley. Jarrett's present attorney, Jane Ruemmele, filed amendments to Jarrett's pro se petition for post-conviction relief on February 22, 1990. The post-conviction court denied the petition on January 7, 1991. This appeal ensued.

DISCUSSION AND DECISION

We begin by noting Jarrett had the burden of establishing grounds for relief in his post-conviction proceedings by a preponderance of the evidence. Carter v. State (1990), Ind.App., 560 N.E.2d 687, 688, trans. denied. To succeed in appealing from the denial of his petition, Jarrett must show the evidence was without conflict and led only to a conclusion opposite of that found by the post-conviction court. Id. Because the post-conviction court is the sole judge of the evidence and the credibility of witnesses, it is not our function to reweigh the evidence or judge the credibility of the witnesses. Sims v. State (1989), Ind.App., 547 N.E.2d 895, 897, trans. denied.

I

Jarrett alleges seven grounds to show he was denied effective assistance of trial counsel. Generally, an issue is waived for post-conviction relief when it was available on direct appeal but was not raised. Smith v. State (1990), Ind.App., 559 N.E.2d 338, 342, trans. denied. Waiver of an issue may be avoided in post-conviction proceedings, however, if failure to present the issue was due to "deprivation of the Sixth Amendment right to effective assistance of counsel" or the issue was "demonstrably unavailable to the petitioner at the time of his trial and direct appeal." Bailey v. State (1985), Ind., 472 N.E.2d 1260, 1263; See also Harding v. State (1989), Ind.App., 545 N.E.2d 14, 15, trans. denied. Jarrett did not allege ineffective assistance of trial counsel in his direct appeal because he was represented by the same counsel in both his trial and direct appeal. Because we cannot expect counsel to allege his own ineffectiveness, Jarrett's failure to raise ineffectiveness of trial counsel in his direct appeal did not render the issues waived. See Smith, supra.

In reviewing competency of counsel, there is a strong presumption counsel is competent, requiring strong and convincing evidence to rebut. Williams v. State (1987), Ind., 508 N.E.2d 1264. We will not speculate about what strategy may have proven to be the most favorable to the defendant. Berry v. State (1990), Ind.App., 561 N.E.2d 832. Jarrett must show his attorney's representation fell below an objective standard of reasonableness under prevailing professional norms. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. He must also show his attorney's failure to function was so prejudicial that it deprived him of a fair trial. Id.

(A) Competency of Victim to Testify

Jarrett argues his trial counsel was ineffective for failing to object to the trial court's determination T.M., a five-year old boy, was competent to testify at trial. Under Indiana law in effect at the time of Jarrett's trial and appeal, a child less than ten years of age was presumed incompetent to testify at trial unless the child understood the difference between telling the truth and lying, and that the oath obligated him to tell the truth. IND.CODE 34-1-14-5. 3 Before allowing T.M. to testify, the trial court was required to conduct a voir dire examination to overcome the presumption of incompetence. Phillips v. State (1990), Ind., 550 N.E.2d 1290, 1297. The trial court's determination T.M. was competent will not be reversed on appeal absent a manifest abuse of discretion. Id. at 1298. Deference is to be afforded the trial court's determination of competency because the trial court has the opportunity to observe the child's intelligence, demeanor and maturity. See Peters v. State (1984), Ind., 470 N.E.2d 708, 710.

When asked at his competency hearing what a lie was, T.M. responded, "Don't tell nothing ... not telling nobody." T.M. stated the truth was "telling bodies ... somebody." When asked the difference between the truth and a lie, T.M. responded, "None, I don't know." The court asked T.M. if he had ever told his parents something that was not true, and T.M. responded, "Not feeding the rabbits." The court determined T.M. told his parents he fed the rabbits when he really had not. T.M. agreed it was wrong not to tell the truth, and he agreed he would tell the truth if he was asked questions in court. Record at 313-24. Immediately before T.M. testified at trial, the court again questioned him about telling the truth. T.M. indicated it was wrong not to tell the truth. Trial Record at 161-62.

While we recognize this transcript provides conflicting evidence as to whether T.M. fully understood the difference between telling the truth and telling a lie, we cannot find it was an abuse of the trial court's discretion to find T.M. competent to testify. T.M. indicated he knew what a lie was by recalling, as an example, when he told his parents he had fed the rabbits, when he had not. T.M. was also able to state he knew it was wrong to tell lies and that he would tell the truth. Because the trial court properly found T.M. was competent to testify, Jarrett's counsel was not ineffective for failing to object to the trial court's determination.

(B) Repetition of Victim's Out-Of-Court Statements

Jarrett argues his trial counsel was ineffective for not objecting when the trial court allowed cumulative testimony of four witnesses repeating allegations made by T.M. against Jarrett. We acknowledge that our supreme court recently disapproved of the kind of cumulative testimony held admissible in Jarrett's trial. In Modesitt v. State (1991), 578 N.E.2d 649, our supreme court overruled the long-standing rule, originally enunciated by the Court in Patterson v. State (1975), 263 Ind. 55, 324 N.E.2d 482, permitting such testimony. Specifically, the Patterson rule permitted prior out-of-court statements to be admitted as substantive evidence, even though they were not made under oath, provided the declarant was present and available for cross-examination when the statements were offered into evidence. Id., 324 N.E.2d at 484-85. Now, under Modesitt, only under limited circumstances may the trial court admit as substantive evidence the cumulative testimony of witnesses repeating out-of-court statements made by others. Modesitt, supra, at 653-54. We find this new rule has no application in Jarrett's appeal, however, because the Supreme Court explicitly denied its retroactive application. Id. at 654.

To find Jarrett's trial counsel was ineffective for failing to object to the cumulative testimony, Jarrett asks us to apply the reasoning of Stone v. State (1989), Ind.App., 536 N.E.2d 534, trans. denied. This court decided Stone, a child molesting case, seven years after Jarrett's conviction, and five years after the final resolution of his direct appeal. In that case, we found the trial court abused its discretion when it permitted the victim's version of the sex acts to be repeated by seven witnesses. We found the evidence unduly emphasized the inflammatory aspects of the State's case and tended to cause the jury "to decide the case on an emotional basis, rather than upon the evidence presented." Id. at 540. We note the Supreme Court agreed in Modesitt that "drumbeat repetition of the...

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