Lee v. State

• Decision Date: 19 October 2011
• Docket Number: No. 49A04-1103-PC-152,49A04-1103-PC-152
• Parties: JAMES LEE, Appellant-Petitioner, v. STATE OF INDIANA, Appellee-Respondent.
• Court: Indiana Appellate Court

JAMES LEE, Appellant-Petitioner,

v.STATE OF INDIANA, Appellee-Respondent.

No. 49A04-1103-PC-152

COURT OF APPEALS OF INDIANA

October 19, 2011

Pursuant to Ind. Appellate Rule 65(D), this

Memorandum Decision shall not be

regarded as precedent or cited before any

court except for the purpose of establishing

the defense of res judicata, collateral

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:

JOHN PINNOW

Greenwood, Indiana

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER

Attorney General of Indiana

ELLEN H. MEILAENDER

Deputy Attorney General

Indianapolis, Indiana

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Mark D. Stoner, Judge

Cause No. 49G06-0804-PC-87611

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary

In 2008, James Lee was convicted of robbing a woman at gunpoint and unlawful possession of a firearm by a serious violent felon. He received a thirty-four-year sentence for these crimes. In 2009, his convictions and sentence were affirmed on direct appeal. Lee then filed a petition for post-conviction relief, alleging that his trial counsel was ineffective in failing to object to evidence identifying him as the robber and in failing to impeach the victim with statements regarding the robber's description and the duration of the robbery. The post-conviction court denied the petition, and Lee appealed. Finding no error, we affirm.

Facts and Procedural History

Another panel of this Court recited the following facts in Lee's direct appeal:

Around 5:30 a.m. on April 9, 2008, Lori May was walking to her vehicle in Indianapolis when Lee forced May into her vehicle, pointed a gun at her stomach, and ordered her to take him to an ATM. May protested that she had no cash or an ATM card, and after Lee examined the contents of her purse and vehicle, he stole some cigarettes and fled.

May alerted the police and provided them with a description of Lee. Within a short period of time, two men matching that description were stopped, but May excluded them. Several days later, May examined hundreds of pictures of potential suspects, but did not identify Lee.

On April 18, 2008, May saw Lee standing on the corner of Fourteenth and Pennsylvania Streets as she was driving home. Lee also saw May and made a mock shooting gesture with his hand as she drove passed him. May alerted the police, but they were unable to apprehend Lee that day. On April 20, 2008, May once again saw Lee standing on the same corner and called the police, who later detained Lee after he had fled.

On April 24, 2008, the State charged Lee with robbery, a class B felony, carrying a handgun without a license, a class A misdemeanor with a class C felony enhancement, and possession of a firearm by a serious violent felon, a class B felony. At Lee's jury trial, which commenced on June 30, 2008, Maytestified that during the offenses, Lee was "almost eerily calm, like he was very comfortable [with] what he was doing." Tr. p. 26. In addition, the jury submitted a question to Officer Shirey asking him whether Lee looked similar to the two men that May had previously excluded as suspects. Over Lee's objection, Officer Shirey testified that Lee closely resembled the second suspect shown to May.

The jury found Lee guilty of robbery and carrying a handgun without a license, a class A misdemeanor. Lee waived his right to a jury trial on the class C felony enhancement to carrying a handgun without a license and on possession of a firearm by a serious violent offender. The bench trial for both offenses was continued until the sentencing hearing, which commenced on July 10, 2008. The trial court found sufficient evidence to support the enhancement and to convict Lee of possession of a firearm by a serious violent offender; however, the trial court merged the two offenses.

Lee v. State, No. 49A05-0808-CR-494, slip op. at 1 (Ind. Ct. App. Apr. 14, 2009) (footnote omitted), trans. denied.

In his direct appeal, Lee challenged the propriety of a jury instruction and the admission of Officer Shirey's aforementioned testimony, as well as his sentence. This Court found no error and affirmed Lee's convictions and sentence.

On July 22, 2009, and June 18, 2010, Lee filed petitions for post-conviction relief (the first pro se and the second by counsel), alleging that his trial counsel was ineffective in failing to object to evidence identifying him as the robber and in failing to impeach May with statements regarding the robber's description and the duration of the robbery. The post-conviction court held an evidentiary hearing on November 4, 2010. On March 1, 2011, the court issued an order denying Lee's petition that contains the following pertinent findings of fact and conclusions of law:

FINDINGS OF FACT

....

10. Lee was represented during [trial] proceedings by Matthew Jeziorski ("Jeziorski") and David Hurley ("Hurley") of the Marion County Public

Defender Agency.

....

20. Lee alleges that his trial counsel's performance was deficient for not objecting to and/or moving to suppress witness May's identification evidence as the product of a suggestive identification procedure. He further alleges counsel should have impeached May with her different descriptions about the robber's facial hair, her description of the robber as being dark skinned, and the length of time the robbery lasted.

....

22. The robbery occurred before sunrise around 5:40 a.m. There was lighting from an interstate I-65 off ramp and the apartment building.¹ The individual approached May from behind and he was wearing a hood on his head. The hood was pulled up, but did not cover his face.

23. Based upon the evidence presented at trial, the Court finds that May the [sic] ample opportunity to view the robber at the time of the crime.

24. Following the robbery, May provided a description of the robber to responding law enforcement officers. She described the person as a black male, six feet tall, medium thin build, and wearing a black puffy jacket with a dark blue or black hood under the coat.

25. At trial, May described the robber as being an African-American male, dark skinned, 6'0" to 6'3", a medium or thin build, unkempt or scraggly facial hair, and wearing a black puffy jacket with a dark blue or black hood underneath.

26. May's separate on scene and in court description[s] of the robber largely matched the descriptions given in two pretrial statements. In herpretrial statement of April 22, 2008, May indicated she looked at the robber's face when she was sitting in her car. Her description of the robber was as follows:

Yeah, he was a, uh, African-American male. He's probably about six, six foot tall approximately. 'Cause his head came, uh, I drive a Blazer, two door Blazer. It's not four wheel drive. His head came approximately into the door frame. He had, uh, kind of a scrappy looking mustache. His skin was, uh kind of bumpy. Uh, he had on a black, uh, it was either black or navy down jacket. It was very dark in color with a hoodie on underneath it. Uh, you could see a little bit of his hair sticking out from under, uh, uh, the front of the hood.

27. At her deposition on June 23, 2008, May described the robber as being dark skinned with a rough, pock marked complexion, unkempt facial hair, and wearing dark pants, a dark colored down jacket, and a dark hoodie underneath. She testified that about an inch of the man's hair stuck out from underneath the hoodie.

28. May testified at trial that the robbery took about ten minutes but "seemed like an hour." Jeziorski questioned whether the event could have taken place during a shorter period of time but May responded, "I doubt it. I doubt it."

29. May called 911 on her cell phone after the robbery and the police were dispatched at 5:40 a.m.

30. Defense counsel did not impeach May or present evidence on whether the robbery may have taken less than ten minutes. Detective James Vaughn ("Vaughn") interviewed May by phone the day after the robbery and met with her two days after that. In the probable cause affidavit Vaughn prepared, May stated that between 5:38 and 5:40 a.m. she was approached by a black male pointing a handgun at her who demanded, "Get in the car and give me what you got." The robbery was dispatched at approximately 5:40 a.m.

31. Defense counsel did not ask May if she told Vaughn or another officer the robbery started around 5:38 a.m. Defense counsel did not ask Vaughn if May stated she went out to her car between 5:38 and 5:40 a.m.

32. May saw Lee again on April 17 or 18 on the corner of 14th Street and Pennsylvania when she was driving home. Lee was wearing a green khakioutfit and his hair looked the same as when he robbed May. May told her husband, "That's the guy that held me up." She made eye contact with Lee and he made a shooting motion. Her husband phoned 911. They drove by a second time and the man started screaming at them. They waited for the police, but no one arrived.

33. The Court takes judicial notice of the fact that the intersection of 14th Street and Pennsylvania Street in Indianapolis is approximately two (2) blocks north of May's apartment building located at 12** N. Pennsylvania Street.

34. On April 20, 2008, May was driving home again when she saw Lee on the same corner wearing the same clothes. May described that Lee had "real scruffy" facial hair which was a bit more grown out. May and Lee locked eyes and he nodded his head at her.

35. May's husband called the police and remained on the line until officers arrived. May believed that officers arrived approximately five to ten minutes thereafter. Officers stopped Lee and handcuffed him. A show-up identification then ensued.

36. May was in a police car twenty to twenty-five feet away when she identified Lee as the robber. May identified Lee as he was sitting handcuffed on a bench. Upon cross examination of Officers Joel Reierson and Dewayne Gaddis, Jeziorski pointed out to the jurors that Lee was the only black male wearing a green shirt to be viewed by May.

37. May did not express any doubt to the

...