Latta v. State

• Decision Date: 16 March 2001
• Docket Number: No. 46S03-0004-PC-236.,46S03-0004-PC-236.
• Citation: 743 N.E.2d 1121
• Parties: Jacqueline LATTA, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
• Court: Indiana Supreme Court

743 N.E.2d 1121

Jacqueline LATTA, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).

No. 46S03-0004-PC-236.

Supreme Court of Indiana.

March 16, 2001.

Susan K. Carpenter, Public Defender of Indiana, Hope Fey, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Thomas D. Perkins, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

ON PETITION FOR TRANSFER

BOEHM, Justice.

In 1990, Jacqueline Latta was convicted of the felony murder of her two-year-old son Brad Latta and sentenced to fifty years imprisonment. She sought postconviction relief on the ground that she was denied effective assistance of counsel. She and her husband, Roger Latta, were tried jointly and were represented by the same counsel. Latta's claim of ineffective assistance of counsel included the contention that this joint representation created an impermissible conflict that adversely affected her defense. The postconviction court rejected this contention, but on appeal the Court of Appeals agreed and granted relief in the form of a new trial.

Joint representation is not inherently impermissible. Latta consented to the joint representation after it was challenged by the State at her trial. The principal issues raised by the joint representation were whether her consent was knowing and intelligent and, if so, whether a conflict created by joint counsel can nevertheless be so severe that a defendant's Sixth Amendment right to effective counsel requires a retrial. We have no findings by the postconviction court on either point. The latter remains an open question under the Sixth Amendment. We do not resolve the issues raised by joint representation because we find ineffective assistance of counsel on other grounds and agree that a new trial is required. However, we include a discussion of the problem of joint representation in the hope that it is helpful to trial courts facing this difficult issue.

Factual and Procedural Background

During the night of February 14, 1989, Latta and her husband Roger escaped with minor injuries when their house burned with their two-year-old son Brad still inside. The Lattas were questioned two days later. Roger told the police that he had tried to retrieve Brad from his bed on four separate occasions. This seemed inconsistent with the absence of any burns on Roger's legs or feet. After extensive questioning, Latta implied that she had some involvement in setting the fire. Latta and Roger were charged with felony murder in May 1989.

Earl Studtmann was retained by Latta and Roger. After he unsuccessfully moved for separate trials, he represented both in their joint trial. The defense was essentially that the fire was accidental and had started in the attic as a result of faulty wiring. The State presented evidence that an accelerant was found near the front door of the Lattas' home. A mostly empty charcoal lighter fluid container was found in the kitchen. An arson investigator testified that the burn patterns on the floors of the kitchen, living room, and Brad's room also indicated the use of an accelerant. Latta and Roger were convicted of murder and both were sentenced to fifty years imprisonment.

On direct appeal, the Court of Appeals concluded, among other things, that (1) a motion to suppress pretrial statements from both Lattas was properly denied; and (2) the trial court did not abuse its discretion in ruling inadmissible pictures of the Lattas' attic. Latta v. State, 581 N.E.2d 470 (Ind.Ct.App.1991) (mem.). Latta then filed a petition for postconviction relief, asserting the above claims, ineffective assistance of counsel, and newly-discovered evidence. The postconviction court denied relief, but the Court of Appeals reversed the denial of postconviction relief and ordered a new trial. The Court of Appeals held that Latta was denied effective assistance of counsel by reason of Studtmann's actual conflict of interest in representing both Latta and Roger. Latta v. State, 722 N.E.2d 389, 392 (Ind.Ct. App.2000). The court then concluded that Latta had demonstrated that an actual conflict of interest existed, that this conflict had adversely affected her representation, and that the representation resulted in actual prejudice. The court held that Latta had waived the issue by failing to object to joint representation at trial. Nevertheless, the Court of Appeals held that permitting the joint representation constituted fundamental error and ordered a retrial.

Standard of Review

In postconviction proceedings, the petitioner bears the burden of establishing the grounds for relief by a preponderance of the evidence. Ind.Post Conviction Rule 1(5). On appeal from a negative judgment, to the extent this appeal turns on factual issues, the defendant must convince this Court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the postconviction court. Trueblood v. State, 715 N.E.2d 1242, 1248 (Ind.1999) (citing Spranger v. State, 650 N.E.2d 1117, 1119 (Ind.1995)).

I. Ineffective Assistance of Counsel, Apart from Issues of Joint Representation

The Sixth Amendment to the United States Constitution guarantees the defendant the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish a claim of ineffective assistance, the defendant must prove that: (1) counsel's performance fell below an objective standard of reasonableness based on prevailing norms; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 687-88, 694, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052.

Latta maintains that she was prejudiced by the introduction into evidence of Roger's unredacted pre-arrest interview in which Roger was asked and, on counsel's objection that "answering it might tend to incriminate," refused to answer questions such as "Did Jackie set the fire?" She also points to Studtmann's closing argument, in which he referred to the possibility that Roger was innocent but covering up for Latta: "Now, then, if we would assume for argument's sake that Roger was trying to protect Jackie, again, just for argument's sake, just assume that, does that make him guilty of anything other than perhaps making a false statement to police. That is not arson murder."

Although the Court of Appeals found fundamental error in permitting the joint representation of both Lattas, we believe this case presents a more conventional claim of ineffective assistance of counsel independent of the issues raised by joint representation.

A. Admission of Interviews

Latta argues that her rights were violated when the unredacted pre-arrest interview of Roger was admitted at trial. This is claimed to have been the product of ineffective counsel and is also presented as a Bruton violation. In Bruton v. United States, the Supreme Court held that admission of one defendant's confession inculpating another defendant in a joint trial violated the other defendant's right to confrontation, even if the jury was instructed to ignore the statement. 391 U.S. 123, 136-37, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

This presents an unusual Bruton claim. Bruton is grounded in the right to confront witnesses, which includes the defendant's right to cross-examine adverse witnesses. Pointer v. Texas, 380 U.S. 400, 406-07, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Bruton reasoned that an inculpatory statement by one defendant may be admissible against that defendant under the rules of evidence. Because that defendant cannot be compelled to testify, the other defendant's right of cross-examination is violated by introduction of the statement. In this case, Roger did not testify and Latta had no opportunity to cross-examine him. However, it is not Roger's testimony, but rather his silence and their joint counsel's objections to which Latta objects. Roger never admitted to any involvement in or knowledge of the fire, but he failed to answer several questions after Studtmann objected that the question called for an "incriminating" response. Latta argues persuasively that the effect is the same as if the court had admitted inculpatory answers from Roger, which would plainly be a Bruton violation. We agree that admission of Roger's statements violated Latta's right to cross-examine unless Roger testified at trial, which he did not. The questions to Roger and counsel's objections bore directly on Latta's guilt or innocence and Latta had no opportunity to cross-examine Roger to attempt to establish that his silence was based on circumstances that do not inculpate her. Latta urges that this silence was taken by the interrogator as a refusal to answer. Because of counsel's description of the question as "incriminating," the jury may well have perceived it as inculpatory of either Roger or both Lattas. However, this was an issue available on the record and not presented on direct appeal. Accordingly, as a direct Bruton violation, it was waived. See Trueblood v. State, 715 N.E.2d 1242, 1248 (Ind.1999)

(issues known and available but not raised on direct appeal are waived for postconviction proceedings).

Although a Bruton claim was waived, we think counsel's failure to object to an unredacted transcript including objections and unanswered questions from Roger's pre-arrest interview is compelling evidence of ineffective assistance of counsel. Latta's pre-arrest interview also contains the same objections of counsel. The postconviction court accepted as "strategic" Studtmann's testimony that he concluded that it was preferable to give the jury a transcript with these statements rather than one with portions erased. We cannot understand this contention. It is difficult to see...