McCollum v. State

• Decision Date: 08 October 1996
• Docket Number: No. 79A05-9509-PC-361,79A05-9509-PC-361
• Citation: 671 N.E.2d 168
• Parties: Philip McCOLLUM, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 168

671 N.E.2d 168

Philip McCOLLUM, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 79A05-9509-PC-361.

Court of Appeals of Indiana.

Oct. 8, 1996.

Susan K. Carpenter, Public Defender of Indiana, Hope Fey, Deputy Public Defender, Indianapolis, for Appellant-Defendant.

Pamela Carter, Attorney General of Indiana, Lisa M. Paunicka, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

BARTEAU, Judge.

On August 23, 1979, Philip McCollum was convicted following a jury trial of battery with a deadly weapon, a Class C felony. On October 13, 1988, the conviction was used to support a finding that McCollum was a habitual offender. McCollum filed a Petition for Post-Conviction Relief on July 8, 1991. McCollum appeals the post-conviction court's denial of relief, and raises the following issues:

1. Whether the post conviction court erred in finding that post-conviction relief was barred by laches?

2. Whether the post conviction court erred in finding that the trial court's failure to instruct the jury on the definition of "recklessly" was not fundamental error?

3. Whether the post conviction court erred in finding that the trial court's instruction on lesser included offenses did not shift the burden of proof and did not misstate the law?

4. Whether the post conviction court erred in finding that McCollum was not denied effective assistance of trial or appellate counsel?

FACTS

In February of 1979, McCollum was involved in a fight outside a tavern. McCollum hit William Brown, and Brown began bleeding. Brown then yelled that he had been stabbed, and pointed out McCollum as the man who had stabbed him. McCollum ran off, but Brown chased McCollum and continued the fight. Police officers eventually broke up the fight. Several people were congregated outside the tavern during the fight. A bystander who had not witnessed the fight found a knife in a snow-bank and turned it over to the police. The knife had only a partial fingerprint on it, which was not sufficient to make an identification. The knife was not tested for blood.

STANDARD OF REVIEW

Under the rules of post-conviction relief, the petitioner bears the burden of establishing his grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1, § 5; Weatherford v. State, 619 N.E.2d 915, 917 (Ind.1993), reh'g denied. To prevail on appeal from the denial of post-conviction relief, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the trial court. Id.

LACHES

The State is required to prove the defense of laches by a preponderance of the evidence. Twyman v. State, 459 N.E.2d 705, 711 (Ind.1984). To prove laches, the State must show that the petitioner unreasonably delayed in seeking relief and that the State has been prejudiced by the delay. Holland v. State, 609 N.E.2d 429, 430-31 (Ind.Ct.App.1993) (quoting Perry v. State, 512 N.E.2d 841, 843 (Ind.1987), reh'g denied ). McCollum argues that the evidence was insufficient to support the findings of unreasonable delay and prejudice. He also argues that the finding of laches violates due process of law under the United States Constitution. We hold that the post-conviction court's finding of laches was proper.

A. Unreasonable Delay

A petitioner can seldom be found to have unreasonably delayed unless he has knowledge of a defect in his conviction. Id. at 431. A finding of knowledge and acquiescence is implicit in a finding of unreasonable delay. Perry, 512 N.E.2d at 843. "Facts from which a reasonable finder of fact could infer petitioner's knowledge may support a finding of laches." Id. at 844. "Repeated contacts with the criminal justice system, consultation with attorneys and incarceration in a penal institution with legal facilities are all facts from which the fact finder may infer knowledge." Id. at 845.

McCollum argues that the court cannot infer knowledge from his contacts with the criminal justice system, his consultation with attorneys, and his incarceration because his petition is based upon errors that arose at a trial and were unique to the trial. He argues that his situation is unlike a challenge of a guilty plea, for which the court can infer knowledge from a petitioner's contacts with the criminal justice system involving other properly entered guilty pleas. McCollum also asserts that his contacts were only brief experiences with the law that are insufficient to support a finding of laches.

Contrary to McCollum's assertion, contacts with the criminal justice system and attorneys need not be based upon the same type of proceeding in order to infer that the petitioner gained knowledge of a defect in the challenged proceeding. A court can infer knowledge of the defect and the means to challenge it from contacts that indicate the petitioner was in a position to learn about seeking relief from the challenged proceeding. Nine v. State, 484 N.E.2d 614, 616 (Ind.Ct.App.1985) (holding that evidence that the petitioner was represented by counsel at guilty plea, filed petition to modify sentence in 1980, and was represented by counsel when probation was revoked in 1981 was sufficient to prove five year delay unreasonable), reh'g denied, trans. denied (1986). See also Pinkston v. State, 479 N.E.2d 79 (Ind.Ct.App.1985) (holding that evidence that petitioner had advice of at least seven attorneys over a period of ten years, gave appellate counsel copies of legal memoranda, wrote letters for other inmates regarding legal matters, and had extensive contact with the criminal justice system was sufficient to support a finding of laches), reh'g denied, trans. denied.

The evidence disclosed that McCollum was convicted of battery with a deadly weapon by a jury in August of 1979. McCollum's counsel filed a Motion to Correct Errors which was denied following a hearing. McCollum appealed, and this Court affirmed his conviction in December of 1980. Two different attorneys appeared as McCollum's appellate counsel. On April 9, 1981, yet another attorney appeared on McCollum's behalf, and filed a Petition for Shock Probation, which was granted following a hearing. McCollum spent approximately one year in the Indiana State Prison and had access to a law library. Further, in 1988 McCollum filed a petition for post-conviction relief attacking a 1971 theft conviction.

These continuous consultations with attorneys regarding the challenged conviction, and McCollum's access to a law library while incarcerated, are sufficient evidence from which to infer that McCollum had knowledge of the defects and the means to challenge the conviction, despite McCollum's testimony that he did not use the law library and had no knowledge. The fact that McCollum filed a petition for post-conviction relief in 1988 challenging a 1971 theft conviction is further evidence that McCollum did in fact have knowledge of the means to challenge his battery conviction. We will not reweigh the evidence or determine the credibility of the witnesses. Grey v. State, 553 N.E.2d 1196, 1197 (Ind.1990), reh'g denied. The evidence was sufficient to support a finding that McCollum's twelve year delay was unreasonable.

B. Prejudice

The State must show prejudice by proving that it would be extremely difficult or impossible to present a case against the petitioner at the time of the post-conviction hearing. Moser v. State, 562 N.E.2d 1318, 1320 (Ind.Ct.App.1990) (citing Wilson v. State, 519 N.E.2d 179 (Ind.Ct.App.1988), trans. denied ). "The inability to reconstruct a case against a petitioner is demonstrated by unavailable evidence such as destroyed records, deceased witnesses, or witnesses who have no independent recollection of the event." Taylor v. State, 492 N.E.2d 1091, 1093 (Ind.Ct.App.1986) (citing Harrington v. State, 466 N.E.2d 1379 (Ind.Ct.App.1984)). "The State has an obligation to use due diligence in its investigation of the availability of evidence and witnesses." Holland, 609 N.E.2d at 431.

McCollum argues that the State did not show that it would be extremely difficult or impossible to try McCollum at the time of the post-conviction hearing. Further, McCollum asserts that he admitted at the first trial that he had hit Brown, and therefore his admission could be used for identification at a new trial. ¹ The State argues that it is prejudiced because two of the witnesses who testified at trial could not identify McCollum at the post-conviction hearing, and because Officer Kimbrell, the investigating officer, had moved out of the United States. The State also asserts that Officer Jarrard, who was a patron of the bar that evening, was unable to recall the details of the event.

The evidence showed that Brown could not identify McCollum as the person who stabbed him. R. 501-02. The only witness who could identify McCollum as the person involved in the fight was Officer Jarrard, who did not actually see the fight, but remembered that others had identified McCollum immediately after the stabbing. Officer Jarrard had reviewed his police report prior to the hearing, but was unable to clearly remember the events of the evening; he indicated that the report had been placed on microfilm and was illegible. R. 531-33. Further, Officer Jarrard testified that he was unable to locate Jeff Long, the witness who had found the knife in the snow near the area where the fight had occurred. This evidence of faded memories ² and missing witnesses is sufficient to show that the State was prejudiced by McCollum's twelve year delay. ³ The State is not required to retry the case using transcripts because such evidence is not nearly as effective as the original live witnesses and materially diminishes the State's ability to present a case. Kindred v. State, 514 N.E.2d 314, 318 (Ind.Ct.App.1987), reh'g denied, trans. denied (1988). Also, McCollum's admission that he hit Brown would be of little assistance in a prosecution for battery with a...