McCary v. State
| Decision Date | 11 December 2000 |
| Docket Number | No. 49A02-0004-PC-226.,49A02-0004-PC-226. |
| Citation | 739 N.E.2d 193 |
| Parties | Brian K. McCARY, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. |
| Court | Indiana Appellate Court |
Susan K. Carpenter, Anne-Marie Alward, Indianapolis, Indiana, Attorneys for Appellant.
Karen M. Freeman-Wilson, Attorney General of Indiana, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.
Petitioner-Appellant Brian K. McCary appeals the denial of his petition for post-conviction relief. We reverse and remand.
McCary raises two issues for our review, which we restate as:
McCary was charged by information on September 21, 1993, with attempted murder, a Class A felony; resisting law enforcement, a Class D felony; and carrying a handgun without a license, a Class A misdemeanor, in connection with events that occurred on September 20, 1993. After a jury trial, he was convicted as charged. He was subsequently given a forty-year sentence. His conviction was affirmed by this court on direct appeal. See McCary v. State, No. 49A02-9412-CR-751, 657 N.E.2d 204 (Ind.Ct.App. November 6, 1995). One of the issues on direct appeal was whether trial counsel was ineffective for failing to investigate and call an Indianapolis police officer as a witness.
McCary filed a pro se petition for post-conviction relief, which was amended when the State Public Defender entered an appearance. After an evidentiary hearing, the post-conviction court denied McCary's petition. In doing so, the post-conviction court concluded that the issue of trial counsel's effectiveness was barred by the doctrine of res judicata. The post-conviction court further concluded that even if the issue was not barred, the evidence indicated that trial counsel's failure to call the police officer was a matter of strategy. McCary now appeals.
In a post-conviction relief proceeding, 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 denial of post-conviction relief, the appellant has the burden to show that the "evidence is without conflict and leads to a conclusion opposite the judgment reached by the post-conviction trial court." Hackett v. State, 661 N.E.2d 1231, 1233 (Ind.Ct. App.1996), trans. denied (quoting Wickliffe v. State, 523 N.E.2d 1385, 1386 (Ind.1988)).
McCary contends that trial counsel was ineffective in failing to call a certain police officer as a witness. Ineffective assistance of counsel claims are analyzed under the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000)
. To succeed, the petitioner must demonstrate both deficient performance and resulting prejudice. Id. A deficient performance is that which falls below an objective standard of reasonableness. Id. Prejudice exists when "there is a reasonable probability that the result of the proceeding would have been different but for defense counsel's inadequate representation." Cook v. State, 675 N.E.2d 687, 692 (Ind.1996).1
The evidence in the present case, as found by this court on direct appeal, indicates that on the evening of September 20, 1993, Officer Anthony Finnell of the Indianapolis Police Department learned at roll call that police were looking for a blue and white Oldsmobile associated with McCary and Ernest Castlel. While on patrol later that evening, Officer Finnell found the car parked at a convenience store. Officer Finnell observed as McCary and a man later identified as Antonio Williams left the store and drove away. Officer Finnell followed the car a short distance before activating his lights and directing McCary, who was driving the car, to pull to the side of the road. McCary immediately pulled into an alley, jumped from the car while it was still moving, and ran south away from the scene. Officer Finnell advised the radio dispatcher of what had occurred and provided a physical description of McCary. Officer Finnell proceeded to the car to secure Williams.
As Officer Finnell was placing Williams in handcuffs, both men heard gunfire coming from south of where they were standing. Officer Finnell pushed Williams to the ground and advised the dispatcher that he was being fired upon. Six shots were fired before Finnell drew his gun and looked over the top of the car. Officer Finnell saw a man standing a short distance away with a build similar to McCary's and wearing similar dark clothing. When Officer Finnell stood up with his gun drawn, the man fled.
Police officers later located and arrested McCary, and he was charged with the attempted murder of Officer Finnell and carrying a handgun without a license. See Memorandum Decision, p. 2-3 (R. 282-83). At the trial on the charges, Officer Finnell testified that at the time of the shooting he did not know whether McCary was the shooter. However, he also testified that in the police station interview room McCary had stated to him that "I wasn't trying to hurt you." Id. at 4. A witness also testified that she overheard a conversation between McCary and a friend in which McCary stated that he and the police had exchanged gunfire and that the police had fired the first shot. Id. at 3.
The post-conviction court found that as off-duty Indianapolis Police Officer Tracy Murphy was backing out his driveway near the alley where the shots were fired at Officer Finnell he saw a man walking down a nearby alley "with a gun in his hand." Officer Murphy reported what he saw, and his report was mentioned in the police report produced by the State during pre-trial discovery. ( of Fact # 5; R. 124). Officer Murphy was familiar with the man he saw in the alley, but he didn't know the man's name. ( of Fact # 6; R. 124). Officer Murphy later picked Aaron Blanche, a/k/a "Shaney," out of a lineup as the man he saw in the alley, and he repeated that identification at the post-conviction hearing. ( of Fact # 7; R. 124).
The post-conviction court also found that no one from the State or defense contacted Officer Murphy prior to trial, and Officer Murphy did not contact anyone about what he observed. ( of Fact # 8; R. 125). McCary's defense at trial was that "although he was the driver of the car stopped by Officer Finnell, and he ran from the police, he did not have a gun that night and did not shoot at anyone." ( of Fact # 9; R. 125). Officer Finnell testified at trial that he saw several individuals in the area the shots came from, but he couldn't see anything in anyone's hand and he could not identify the shooter. Id.
The post-conviction court further found that at trial McCary pointed to Shaney as the probable shooter. ( of Fact # 10; R. 125). The post-conviction court noted that trial counsel testified at the post-conviction hearing that "had he known about Officer Murphy's identification of Blanche, he still might not have called him as a witness at trial." ( of Fact # 11; R. 125). The post-conviction court concluded that "trial counsel's decision to refrain from calling [Officer] Murphy was a strategy decision and did not amount to ineffective assistance of counsel [because] [t]rial counsel testified that he was aware of the fact that another person had been seen in the area of the alleged crime at the time of the shooting and that he made a decision not to find and call that person at trial." (Conclusion of Law # 10; R. 128).
Our review of the record discloses that the probable cause affidavit filed in this case stated that Officer Murphy "heard the shots being fired and exited his residence where he lives in the area."2 Officer Murphy "gave chase of the suspect; however, he lost him in the area of 2800 N. Gale Street." (T.R. 277). At the post-conviction hearing, trial counsel acknowledged that he reviewed the probable cause affidavit in preparing for trial. He also acknowledged that he did not interview Officer Murphy because he didn't "know that there was much connection" and because Officer Murphy's testimony wouldn't have "ma[d]e that much difference." (R. 161). Trial counsel stated that it was a matter of strategy not to interview the officer. Trial counsel supported his failure to interview Officer Murphy by observing that many people carry guns in the general area that the shooting took place.
Our review of the record also discloses that trial counsel, in furtherance of his position that McCary was not the shooter, called a Latoya Harrison at trial to establish that immediately after the shooting, a "scared" Shaney came to her apartment at 2835 N. Gale and asked to use the phone. This apartment was near the shooting but was in the opposite direction of where McCary was later apprehended. The witness testified that Shaney gave a handgun to a friend to "keep" for him. The witness also testified that Shaney left and returned the next day to retrieve the gun. In closing argument, trial counsel asked the jury, "Were there other people in this area who we know had handguns?" He answered the question by saying, (R. 259).
In determining whether trial counsel was ineffective, we must be cognizant that "[i]f every mistake or oversight made in the preparation of a case or at trial, perceived in the leisure of retrospection, should be considered probatory of legal incompetency, then a...
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