Martin v. State

Decision Date20 March 2001
Docket NumberNo. 45A05-0009-PC-379.,45A05-0009-PC-379.
Citation744 N.E.2d 574
PartiesOrlando MARTIN, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
CourtIndiana Appellate Court

Susan K. Carpenter, Public Defender of Indiana, Cynthia Maricle Russell, Deputy Public Defender, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Judge

Case Summary

Orlando Martin appeals his conviction for murder, a felony, following a jury trial and subsequent direct appeal. We reverse.

Issues

Martin raises two issues for our review which we restate as:

1. Whether the trial court committed fundamental error by instructing the jury with respect to aiding and abetting after the jury asked a question during deliberations; and
2. Whether Martin was denied effective assistance of counsel.
Facts and Procedural History

The facts, as stated in Martin's direct appeal, are as follows:

The record reveals that Martin's teenage daughter, Sharon, was injured on July 2, 1990, at her high school. Apparently, Sharon and an unidentified boy were involved in some type of sexual activity when Sharon experienced an epileptic seizure. Allegations of rape were made; however, no arrests occurred. The seizure led to an aneurism to Sharon's brain and she died on August 2, 1990. After Sharon's death, Martin and his friend Elston Pickford, enlisted the help of LaTanya Means to identify the boy Sharon was with at the time of her attack. LaTanya later provided Martin with the names of two fellow students, Shawn Lige and Donald Stewart.
Subsequently, Pickford came to LaTanya's home, provided her with a car and asked her to locate Donald Stewart. LaTanya complied and eventually delivered Stewart back to her house. Pickford, Martin and Stewart later left LaTanya's house and went to a wooded area. Pickford observed Martin walking Stewart into the woods with a gun. Pickford then heard a scream and two shots.
Stewart's mother eventually became worried when her son did not return home and contacted the local police and later the Federal Bureau of Investigation. She informed the police that her son had received threats connected to rumors that he was involved with the rape of a girl at the local high school.
During the course of the investigation, police went to the home of Martin. Martin produced a handgun which the police took into their possession. Later, after Martin's arrest in connection with the murder of Donald Stewart, Martin's girlfriend gave F.B.I. agents a brown paper bag that she said Martin had given her prior to his arrest. The bag contained a second gun and a car rental contract. Martin's girlfriend had rented a Pontiac 6000 for two days late in August, the same time the crime was committed. Martin's girlfriend testified that Martin had access to the car.
Pickford was also arrested at which time he divulged the whereabouts of Donald Stewart's remains. Agents found a decomposed body at that location. Stewart had been shot in the head.

Martin v. State, 636 N.E.2d 1268, 1270 (Ind.Ct.App.1994).

Martin was charged with murder, a felony. After the conclusion of evidence at his jury trial, the State requested that the trial court give an instruction on aiding and abetting, but the trial court refused, stating "that would be too confusing to the jury." R. 963.1 During deliberations, the jury sent a note to the court, asking, "If two people go to the murder site and only 1 person fires the weapon, are both considered guilty by the law? And the other one helped get the victim to the murder site." R. 81. In response, and over Martin's objection, the trial court gave a supplemental jury instruction on aiding and abetting to the jury.2 Martin was found guilty as charged and filed a direct appeal wherein we affirmed his conviction. Id. at 1273. He sought post-conviction relief which was denied. He now appeals.

Discussion and Decision
I. Post Conviction Issues

Martin raises an issue in this appeal regarding a supplemental instruction given to the jury, an issue which was available to him on his direct appeal. Post-conviction relief is not a substitute for a direct appeal. Ind. Post-Conviction Rule 1, § 1(b). "The purpose of a petition for post-conviction relief is to raise issues unknown or unavailable to a defendant at the time of the original trial and appeal." Capps v. State, 709 N.E.2d 24, 25 (Ind.Ct. App.1999), trans. denied. Post-conviction relief contemplates a rather small window for review, particularly when the petitioner has been afforded the benefit of a direct appeal. Id. Thus, if issues were available at the time of the trial or on direct appeal, and were not raised, then the issues are waived. Nuckles v. State, 691 N.E.2d 211, 213 (Ind.Ct.App.1998).

In order to avoid waiver, Martin argues that the trial court committed fundamental error when it gave an instruction to the jury, after deliberations had begun, in direct response to the jury's question, and in isolation from the other instructions. He further asserts that the instruction should not have been given because it was not supported by the evidence.

The fundamental error doctrine permits review of an improperly raised error if the reviewing court finds that the error was so prejudicial to the rights of the petitioner that he or she could not have had a fair trial. Nuckles, 691 N.E.2d at 213. However, our Supreme Court has stated that the fundamental error exception is an extremely narrow one, and in post-conviction proceedings, is generally limited to the "right to effective assistance of counsel, or . . . an issue demonstrably unavailable to the petitioner at the time of his [or her] trial and direct appeal." Canaan v. State, 683 N.E.2d 227, 235 n. 6 (Ind.1997), cert. denied, 524 U.S. 906, 118 S.Ct. 2064, 141 L.Ed.2d 141 (1998) (quoting Bailey v. State, 472 N.E.2d 1260, 1263 (Ind.1985)). Therefore, if the issue was available at the time of direct appeal, we may address the issue in the context of an ineffective assistance of counsel claim. Hubbard v. State, 696 N.E.2d 72, 74 (Ind. Ct.App.1998).

Here, the issue Martin raises with respect to the supplemental jury instruction was available to him on direct appeal; therefore, we will address the merits of his argument within our discussion of his claim of ineffective assistance of counsel.

II. Ineffective Assistance of Counsel

Martin argues that he was denied effective assistance of his appellate counsel. He asserts that because his appellate counsel failed to argue, on direct appeal, that the trial court erroneously gave the supplemental instruction in the middle of deliberations, he was not afforded effective assistance of counsel. Thus, Martin alleges that his petition for post-conviction relief should be granted and that his conviction and sentence should be vacated. We agree. A successful claim of ineffective assistance of counsel has two components. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Lawrence v. State, 464 N.E.2d 1291, 1294 (Ind.1984). First, the defendant must show that his counsel's performance was deficient, that is, that counsel's performance fell below an objective standard of reasonableness. Taylor v. State, 659 N.E.2d 1054, 1061 (Ind.Ct.App.1995),trans. denied. Second, the defendant must show that the deficient performance prejudiced the defense, that is, that but for counsel's deficient performance, the result of the proceedings would have been different. Id.

In reviewing the competency of counsel, there is a presumption that counsel is competent. Howell v. State, 453 N.E.2d 241, 242 (Ind.1983). Strong and convincing evidence is required to rebut this presumption. Id. Whether counsel was incompetent revolves around the facts of each case. Id. The reviewing court will not speculate as to what may have been the most advantageous strategy in a particular case. Id. at 242-43. Isolated poor strategy, inexperience, or bad tactics do not necessarily amount to ineffective assistance of counsel. Id. at 243. The judicial scrutiny of counsel's performance is highly deferential and should not be exercised through the distortions of hindsight. Slaton v. State, 510 N.E.2d 1343, 1345 (Ind. 1987), cert. denied, 506 U.S. 921, 113 S.Ct. 337, 121 L.Ed.2d 254 (1992).

With respect to arguments of ineffective assistance of appellate counsel, the claims generally fall into three basic categories: 1.) denying access to appeal, 2.) waiver of issues, and 3). failure to present issues well. Harrison v. State, 707 N.E.2d 767, 786 (Ind.1999), cert. denied, 529 U.S. 1088, 120 S.Ct. 1722, 146 L.Ed.2d 643 (2000). "When counsel's presentation of a claim on appeal is so deficient the reviewing court deems it waived, the appellant is in little better position than if counsel had failed to raise the issue in the first place. Counsel's representation in its entirety is nevertheless still the touchstone of determining whether counsel's performance fell below an objective standard of reasonableness." Bieghler v. State, 690 N.E.2d 188, 195 (Ind. 1997), cert. denied, 525 U.S. 1021, 119 S.Ct. 550, 142 L.Ed.2d 457 (1998). Further, even when counsel's performance has been found deficient under this analysis, the appellant still must show "a reasonable probability that, because of counsel's deficiencies, the convictions are fundamentally unfair or unreliable." Id.

Martin claims that at trial his appellate counsel failed to "argue in the direct appeal that the trial court erroneously gave the aiding and abetting instructions in the middle of deliberations." Brief of Petitioner-Appellant at 18. He claims that such a failure constituted deficient performance; that had the issue been raised, he would have been granted a new trial; and that he was therefore prejudiced.

Upon review of the opinion in Martin's direct appeal, we find that Martin's appellate counsel "raised a fourth...

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1 cases
  • Martin v. State
    • United States
    • Supreme Court of Indiana
    • January 4, 2002
    ...court's denial of the petition, holding that Martin's appellate representation was both deficient and prejudicial. Martin v. State, 744 N.E.2d 574, 579 (Ind.Ct.App.2001). We accepted transfer and now affirm the post-conviction court's denial of I. Fundamental Error Rightly Held Unavailable ......

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