Jones v. State
| Decision Date | 04 May 2006 |
| Docket Number | No. 49A02-0510-CR-1018.,49A02-0510-CR-1018. |
| Citation | 847 N.E.2d 190 |
| Parties | Melissa JONES, Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner. |
| Court | Indiana Appellate Court |
Joel M. Schumm, Indianapolis, for Appellant.
Steve Carter, Attorney General of Indiana, Robyn M. Williamson, Kelly A. Miklos, Deputy Attorneys General, Indianapolis, for Appellee.
Appellant-Respondent Melissa Jones ("Jones") appeals the judgment of the trial court finding her in contempt of court for refusing to appear at a pre-trial deposition after having been subpoenaed to do so. Jones also challenges the trial court's imposition of a two-hundred-day "flat" sentence. We affirm.1
Jones raises three issues, which we restate as:
I. Whether Jones received effective assistance of trial counsel;
II. Whether the evidence is sufficient to support the trial court's finding of contempt; and
III. Whether Jones's sentence is unreasonable or inappropriate under Indiana Code Section 35-50-6-3(a) and Indiana Appellate Rule 7(B).
On October 20, 2003, the State charged Michael Mason ("Mason") with murder and carrying a handgun without a license as a Class A misdemeanor, resulting from the death of Antione Mitchell. During the investigation of the death, Indianapolis Police Detective Michael Mitchell ("Detective Mitchell") interviewed Jones — a relative of Mason — the only witness who could identify Mason as the shooter. Initially, Jones gave a statement and signed some photo arrays.
On September 30, 2004, Detective Mitchell personally served Jones with a subpoena to appear for a deposition on October 7, 2004. Detective Mitchell instructed Jones "not to miss the deposition," even if "something comes up," because she does not "have the right not to show up." Tr. at 28. He further advised her that "if she needed a ride, to get a hold of [him.] [He] would come get her." Id. At that time, according to Detective Mitchell, Jones did not indicate that she was afraid of testifying at the deposition or that she had received threats from a gang with which the victim was allegedly affiliated.
On October 7, 2004, Jones failed to appear for the deposition. In her words: Id. at 33.
The following day, a bench warrant was issued for Jones's arrest. On October 13, 2004, Mason filed a motion to exclude the testimony of the State's material witnesses, including Jones, because, on three separate occasions, they had failed to appear for their depositions.2 Thereafter, on October 14, 2004, Jones left two telephone messages for Deputy Prosecutor Janna Skelton ("Skelton") regarding the warrant.
On January 20, 2005, the State filed a motion to continue Mason's jury trial. In relevant part, this motion provides:
6. The State of Indiana cannot go forward with its case without Ms. Jones. The State has been making a good faith effort to find Ms. Jones, but has not yet been able to locate her.
7. The State is requesting additional time to locate Ms. Jones so that we may proceed on these charges.
8. Defendant Mason requested a speedy trial on December 15, 2004. The 70th day is February 23, 2005.
Appellant's App. at 42 (emphasis in original). Because of Mason's speedy trial right, however, the trial court denied the State's motion for continuance. Subsequently, the State filed a motion to dismiss the charges against Mason, which the trial court granted.
On October 4, 2005, in a separate action, the State charged Jones with indirect contempt, under Indiana Code Sections 34-47-3-1 and 34-47-3-5, for her failure to appear at the October 7th deposition. On October 14, 2005, the trial court conducted a contempt hearing, at which time Jones admitted that she had failed to appear for the deposition, but argued that, in so doing, she did not willfully disobey the process of the court. Rather, Jones explained that she did not appear because she feared for her life.3 On October 18, 2005, the trial court found Jones in indirect contempt and ordered her to serve "200 days flat in the Marion County Jail," with the sentence to end on April 12, 2006. Id. at 26. On the order, the trial judge wrote: "Do Not Release Early!!" Id. Jones now appeals.
On appeal, Jones first argues that she received ineffective assistance of trial counsel. Effectiveness of counsel is a mixed question of law and fact. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We evaluate Sixth Amendment claims of ineffective assistance under the two-part test announced in Strickland. Id. To prevail on an ineffective assistance of counsel claim, a defendant must demonstrate both deficient performance and resulting prejudice. Dobbins v. State, 721 N.E.2d 867, 873 (Ind.1999) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). Deficient performance is that which falls below an objective standard of reasonableness. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; see also Douglas v. State, 663 N.E.2d 1153, 1154 (Ind.1996). Prejudice exists when a claimant demonstrates that Strickland, 466 U.S. at 694, 104 S.Ct. 2052; see also Cook v. State, 675 N.E.2d 687, 692 (Ind.1996). The two prongs of the Strickland test are separate and independent inquiries. Strickland, 466 U.S. at 697, 104 S.Ct. 2052. Thus, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed." Id.
In the present case, Jones argues that her trial counsel rendered ineffective assistance because counsel failed to object to: (1) Skelton's role as both witness and prosecutor, in violation of Indiana Rule of Professional Conduct 3.7; and (2) the trial court's partiality as evidenced by its questioning of Jones. We separately address these arguments.
Jones maintains that she received ineffective assistance of trial counsel because her counsel failed to object to Skelton's dual role as prosecutor and witness, pursuant to Indiana Rule of Professional Conduct 3.7.4 The record demonstrates that, at the contempt hearing, the State called Skelton as its first witness. At that time, the trial court informed Skelton that she would have to withdraw as prosecuting attorney and allow Jennifer Haley ("Haley") to proceed as prosecutor. Haley then proceeded to examine Skelton as a witness. Once the direct examination was complete, however, Skelton resumed her role as prosecutor and conducted the direct examination of Detective Mitchell, as well as the cross-examination of Jones.
Assuming arguendo that Jones's trial counsel performed deficiently by failing to object to Skelton's role as both witness and advocate, Jones has not shown a reasonable probability that the result of the proceedings would have been different had Skelton not been allowed to act as either a witness or a prosecutor. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052. In relevant part, Skelton, as witness, only testified that: (1) the deposition scheduled for January 23, 2004 was postponed because Jones was unable to attend; (2) Detective Mitchell personally served Jones with the subpoena to appear at the October 7 deposition; (3) on October 14, 2004, Jones left Skelton two voice mail messages, indicating that she was aware of the bench warrant; and (4) on January 28, 2005, Skelton and Jones discussed the bench warrant and the need for Jones to turn herself into the police. At the contempt hearing, Jones admitted that she was incarcerated on a separate matter on January 23, 2004, and, further, that she had received the subpoena in question but failed to appear for the deposition on October 7, 2004. Jones testified, however, that she never spoke to Skelton on October 14, 2004 or January 28, 2005, regarding the bench warrant. This discrepancy in testimony does not establish prejudice for Strickland purposes. As Jones aptly recognizes in her reply brief, the events that occurred after the contempt, i.e., the conversations concerning the bench warrant, are "simply not relevant to the contempt finding, which requires proof of willful disobedience of a court order." Appellant's Reply Br. at 4.
Moreover, in light of Detective Mitchell's testimony, which, for the most part, comprises our Statement of Facts, Jones has failed to demonstrate a reasonable probability that the result of the contempt proceedings would have been different had Skelton not acted as both a witness and prosecutor at the contempt hearing. Accordingly, Jones has failed to show that she was prejudiced by her trial counsel's alleged deficient performance.
Jones also contends that her trial counsel rendered ineffective assistance by failing to object to the trial court's partiality as evidenced by its questioning of Jones. During her direct examination, Jones testified that, in February of 2003, she started receiving threatening telephone calls because of her involvement in the State's prosecution of Mason. The following exchange ensued:
A Because I was scared of things around my house.
Q Well what's the "thing" — we don't know...
A Like people — like people knockin' on my door and runnin' .... People knockin' on my doors; gettin' on my phone ... and threatenin' to kill me and my babies.
Q So what did you do.
A I left...
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