McCary v. State
| Decision Date | 18 January 2002 |
| Docket Number | No. 49S02-0105-PC-00240.,49S02-0105-PC-00240. |
| Citation | 761 N.E.2d 389 |
| Parties | Brian K. McCARY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender of Indiana, Anne-Marie Alward, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
Steve Carter, Attorney General of Indiana, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant Brian McCary, who is serving a forty-year sentence for attempting to kill a police officer, asks for a new trial. He contends that his trial counsel was ineffective, but that question has already been litigated and is res judicata against him. His claim that his appellate counsel was ineffective is without merit. We affirm the denial of post-conviction relief.
On the evening of September 20, 1993, Indianapolis Police Department Officer Anthony Finnell was told at roll call to be on the lookout for a particular blue and white Oldsmobile. As he began patrolling, Officer Finnell spotted the car parked at a convenience store in the vicinity of East 30th Street and North Sherman Drive. He watched as McCary and Antonio Williams entered the car and drove away.
After following them for a short distance, Officer Finnell pulled the vehicle over. McCary jumped from the car while it was still moving and ran off. Finnell called for backup and began to handcuff Williams.
Finnell then heard gunshots coming from the spot where he had last seen McCary. He dropped behind the Oldsmobile for protection, pulling Williams down as well. After six shots were fired, Finnell drew his gun and looked over the car. A man with a similar build and clothing to McCary's looked at Finnell and fled.
McCary ran to a nearby friend's house. There, McCary said that he had been followed by police, leapt from his car, and exchanged gunfire after the police fired first.
The police apprehended McCary as he left the friend's house in a speeding car. McCary lied about his identity, but Williams was brought to the arrest scene and positively identified McCary as the driver of the Oldsmobile. Later that night at the police station, McCary told Officer Finnell, "I wasn't trying to hurt you." (T.R. at 229.)
A jury found McCary guilty of attempted murder, a class A felony;1 resisting law enforcement, a class D felony;2 and carrying an unlicensed handgun, a class A misdemeanor.3 The court sentenced him to concurrent terms, with forty years on the lead charge.
McCary raised three claims on direct appeal, including ineffective assistance of trial counsel. McCary v. State, No. 49A02-9412-CR-751, memo. op. at 2, 657 N.E.2d 204 (Ind.Ct.App. Nov. 6, 1995). The Court of Appeals affirmed the conviction.
In his post-conviction challenge, McCary focuses on ineffective assistance of trial and appellate counsel. (Appellant's Br. at 11-12 .) The post-conviction court rejected both claims. The Court of Appeals held for McCary on both and reversed. McCary v. State, 739 N.E.2d 193, 201 (Ind. Ct.App.2000). We granted transfer, and now affirm the post-conviction court.
A post-conviction procedure is not an opportunity for a "super-appeal." Ben-Yisrayl v. State, 729 N.E.2d 102, 105 (Ind. 2000),cert. denied, ___ U.S. ___, 122 S.Ct. 73, 151 L.Ed.2d 38 (2001). A petitioner who has been denied post-conviction relief appeals from a negative judgment, and he must convince the appellate court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. Prowell v. State, 741 N.E.2d 704 (Ind.2001). In other words, "[t]his Court will disturb a post-conviction court's decision as being contrary to law only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion." Miller v. State, 702 N.E.2d 1053, 1058 (Ind.1998),cert. denied, 528 U.S. 1083, 120 S.Ct. 806, 145 L.Ed.2d 679 (2000) (citations omitted).
A claim of ineffective assistance of counsel must satisfy two components. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Williams v. Taylor, 529 U.S. 362, 390-91, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)
. First, the defendant must show deficient performance: representation that fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the "counsel" guaranteed by the Sixth Amendment. Id. at 687-88, 104 S.Ct. 2052. Second, the defendant must show prejudice: a reasonable probability (i.e. a probability sufficient to undermine confidence in the outcome) that, but for counsel's errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052.
Few points of law are as clearly established as the principle that "[t]actical or strategic decisions will not support a claim of ineffective assistance." Sparks v. State, 499 N.E.2d 738, 739 (Ind.1986). We afford great deference to counsel's discretion to choose strategy and tactics, and strongly presume that counsel provided adequate assistance and exercised reasonable professional judgment in all significant decisions. See Strickland, 466 U.S. at 689-90,
Even the best and brightest criminal defense attorneys may disagree on ideal strategy or the most effective approach in any given case. Id. at 689, 104 S.Ct. 2052. Furthermore, "[i]solated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective." Timberlake v. State, 753 N.E.2d 591, 603 (Ind.2001) (citing Bieghler v. State, 690 N.E.2d 188, 199 (Ind.1997), cert. denied, 525 U.S. 1021, 119 S.Ct. 550, 142 L.Ed.2d 457 (1998)).
McCary argued on direct appeal that his trial counsel was constitutionally ineffective. McCary, memo. op. at 6, 657 N.E.2d 204. His argument failed. Id. at 11, 657 N.E.2d 204. He raises this same issue again in his petition for post-conviction relief. (Appellant's Br. at 1.)
It has long been the rule that a defendant who raises a claim of ineffective assistance of trial counsel on direct appeal is foreclosed from subsequently relitigating that claim. Woods v. State, 701 N.E.2d 1208, 1220 (Ind.1998), cert. denied, 528 U.S. 861, 120 S.Ct. 150, 145 L.Ed.2d 128 (1999). See also Sawyer v. State, 679 N.E.2d 1328, 1329 (Ind.1997)
("[The defendant], having once litigated his Sixth Amendment claim concerning ineffective assistance of counsel, is not entitled to litigate it again, by alleging different grounds."); Morris v. State, 466 N.E.2d 13, 14 (Ind.1984)("Notwithstanding the fact that petitioner gave several additional examples of his counsel's alleged ineffectiveness during the post-conviction hearing, a consideration of the ineffectiveness issue would constitute review of an issue already decided on direct appeal.").
McCary's claim of ineffective assistance of trial counsel is res judicata.
McCary next asserts that his appellate counsel was ineffective for raising the issue of ineffective assistance of trial counsel on direct appeal. McCary's trial counsel did not call Officer Tracey Murphy as a witness. (T.R. at iii-vii.) McCary asserts that his appellate counsel's failure to "develop[ ] a record to show what the officer would have testified to ... doom[ed] the claim to failure and depriv[ed] McCary of an effective appeal." (Appellant's Br. at 11-12.)
This argument stems from the probable cause affidavit, which was available to both trial and appellate counsel. It stated that Officer Murphy, who was at home and off duty, heard shots and chased but then lost "the suspect." (T.R. at 21.) McCary's defense was that he did indeed flee the police, but did not shoot. (P-C.R. at 255-64.)
McCary's appellate lawyer suggested that the man Officer Murphy saw was most likely Aaron Blanche, whom the defense had portrayed at trial as the probable shooter. (P-C.R. at 208-09, 259, 261.) The Court of Appeals rejected this argument as speculative, though it turned out to be correct.4
In Timberlake, 753 N.E.2d at 604, we described the burden a party must establish for a claim of this type:
When the claim of ineffective assistance is directed at appellate counsel for failing fully and properly to raise and support a claim of ineffective assistance of trial counsel, a defendant faces a compound burden on postconviction. The postconviction court must conclude that appellate counsel's performance was deficient and that, but for the deficiency of appellate counsel, trial counsel's performance would have been found deficient and prejudicial. Thus, Timberlake's burden before the postconviction court was to establish the two elements of ineffective assistance of counsel separately as to both trial and appellate counsel.
Id. (citing Ben-Yisrayl v. State, 738 N.E.2d 253, 261-62 (Ind.2000)).
Of course, we review appellate counsel's effort in its totality when considering whether a defendant received constitutionally adequate assistance. Bieghler, 690 N.E.2d at 194. The forty-three-page brief filed for McCary's appeal raised three major issues: sufficiency of the evidence, improper communication between the court and jury in McCary's absence, and ineffective assistance of counsel. (P-C.R. at 172-214.)
Under the heading of ineffective assistance, appellate counsel argued that trial counsel was deficient in three respects: by (1) failing to conduct an adequate investigation, (2) failing to interview and call certain witnesses, and (3) failing to respond properly to the communications between the court and jury during jury deliberations. (P-C.R. at 286.) Appellate counsel also argued that another attorney specially appointed to represent McCary during a hearing on a pro se motion to...
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