Metcalf v. State

• Decision Date: 26 July 1983
• Docket Number: No. 382S92,382S92
• Citation: 451 N.E.2d 321
• Parties: George METCALF, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 321

451 N.E.2d 321

George METCALF, Appellant, v. STATE of Indiana, Appellee.

No. 382S92.

Supreme Court of Indiana.

July 26, 1983.

Susan K. Carpenter, Public Defender, Ihor N. Boyko, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Latriealle Wheat, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant-Petitioner George Metcalf was found guilty by a jury in the Lake County Superior Court, Criminal Division, of the crime of infliction of injury during robbery. He was sentenced to life imprisonment. His conviction was affirmed by this Court on direct appeal in Metcalf v. State, (1978) 268 Ind. 579, 376 N.E.2d 1157. Appellant subsequently filed a petition for post-conviction relief in the trial court. The trial court entered judgment against him and he now brings this appeal alleging reversible error in the trial court's post-conviction judgment.

The evidence shows that Appellant and three armed companions forced their way into the home of Donald Rhymes and demanded money and a gun from him. All of the occupants in said home were personally acquainted with Appellant who did not wear a mask or other disguise while taking part in the instant robbery. Appellant appeared to be the leader in that he gave the orders. While attempting to aid his wife by grabbing the nearest intruder, Donald Rhymes was shot and seriously injured. Although there was conflict in the evidence as to whether Appellant was the one who pulled the trigger, one eyewitness testified that he did.

Appellant presents the following two issues for our consideration:

1. whether he was denied his constitutional right to the effective assistance of counsel; and

2. whether he was denied due process of law in that fundamental error was committed.

I

We first note, as we have repeatedly, that in a post-conviction proceeding, the petitioner bears the burden of proof to establish grounds for relief by a preponderance of the evidence. Cobbs v. State, (1982) Ind., 434 N.E.2d 883. The judge who presides at the post-conviction hearing possesses exclusive authority to weigh the evidence and to determine the credibility of witnesses. Hendrix v. State, (1981) Ind., 418 N.E.2d 1161. The court of review will not set aside the trial court's ruling on a post-conviction petition unless the evidence is without conflict and leads solely to a result different from that reached by the trial court. Tessely v. State, (1982) Ind., 432 N.E.2d 1374.

Appellant now claims that he was denied his constitutional right to the effective assistance of trial counsel. He gives several examples of his trial counsel's conduct to substantiate that claim. We find that Appellant did not raise this issue in his direct appeal which therefore constitutes a waiver on this issue. Hollonquest v. State, (1982) Ind., 432 N.E.2d 37. Since several of the alleged examples of ineffectiveness of counsel are also involved in Appellant's fundamental error claim, we will review them in spite of Appellant's clear waiver of the specific issue of ineffective counsel.

In considering alleged incompetency of counsel, this Court looks to the particular facts of each individual case. The review standard is a mockery of justice test, modified by the adequate representation standard. Weaver v. State, (1982) Ind., 432 N.E.2d 5; Cobbs, supra. A presumption exists that defense counsel is competent and only strong and convincing evidence will rebut that presumption. Tillman v. State, (1982) Ind., 432 N.E.2d 407. Isolated poor strategy, bad tactics or inexperience does not necessarily amount to ineffective counsel. Hollonquest, supra; Cobbs, supra.

Appellant claims that his attorney talked to him on only two occasions prior to trial, each occasion being just a brief encounter. Appellant further claims that he was never advised that a plea agreement was possible and had been discussed with the prosecuting attorney. Appellant's trial counsel directly contradicted this testimony. He claimed that he saw Appellant on numerous occasions and discussed all aspects of the trial with him. He stated that he negotiated a plea bargain arrangement with the State which would have permitted Appellant to plead guilty and receive a fifteen year term. According to counsel, Appellant at first indicated that he was willing to accept the plea agreement but later withdrew his approval and refused to take part in it. Appellant's two contentions therefore were in direct conflict with the other testimony before the trial court and were resolved on credibility. The trial judge did this and we leave it to his judgment.

Appellant did not testify in his own behalf at trial. Appellant's trial attorney testified at the post-conviction hearing that it was his decision not to put Appellant on the stand because he did not think Appellant could withstand cross-examination. Counsel said that during his discussions with Appellant, Appellant often changed his story and appeared to be unreliable. Counsel further thought, from a strategy standpoint, that Appellant would be in a better position remaining silent than in attempting to withstand the testimony of three eyewitnesses who identified him and the inference from another witness that he was one of the participants. Appellant now claims that his attorney never advised him that he had a choice in deciding whether or not to take the stand. He states that he would have done better to have testified in his own behalf. Counsel testified that he discussed this matter with Appellant at length and advised him that taking the stand would be unwise. Counsel stated that Appellant agreed. Again we find conflict which the trial judge resolved as was his duty. Furthermore, we will not second guess the strategy or trial tactics of defense counsel. Deliberate choices by attorneys for some tactical or strategic reason do not establish ineffective representation even though such choices may be subject to criticism or the choices ultimately prove detrimental to the defendant. Cobbs, supra.

The decision not to call Marion Noel as a defense witness also was a strategy call by defense counsel. Noel was present at the Rhymes' residence during the instant robbery. She subsequently removed herself to Pennsylvania making it questionable whether she could be obtained as a witness in this case. The State decided not to call her and defense counsel indicated that he had similarly decided. Notwithstanding, defense counsel was able to show through one of the police witnesses that Noel could not identify any of the participants in the instant robbery. The officer's testimony also tended to show that Noel's testimony would contradict some of the other eyewitnesses since it would place Appellant in her presence when Rhymes was shot in another room in the house. This officer's testimony tending to show that Appellant was not the one who pulled the trigger was a benefit to Appellant. Defense counsel stated that if Noel was present and cross-examined by the prosecutor, her supporting evidence might not have been as strong as it was coming in a second hand manner without cross-examination. Counsel therefore believed that Appellant was in the best position not having Noel testify. He believed this true even though the officer's testimony implied that Appellant was present and participated in the robbery since three eyewitnesses absolutely identified Appellant as one of the participants in the instant crime and one eyewitness testified that Appellant pulled the trigger. The decision not to call Noel was a matter of trial counsel's strategy in a very difficult case and apparently benefited Appellant more than it prejudiced him.

Appellant now also claims that he was entitled to a missing witness instruction which would have told the jury that they could infer that Marion Noel would testify against the State since the State did not produce her as a witness. There is no merit to this contention. The missing witness instruction is appropriate only when a witness is available to be produced by one party but not by the other. Bruce v. State, (1978) 268 Ind. 180, 375 N.E.2d 1042, cert. denied 439 U.S. 988, 99 S.Ct. 586, 58 L.Ed.2d 662; Banks v. State, (1976) 265 Ind. 71, 351 N.E.2d 4, cert. denied (1977) 429 U.S. 1077, 97 S.Ct. 821, 50 L.Ed.2d 797. There is no showing here that Noel was available to one party and not to the other. Appellant was not entitled to any such instruction.

Appellant next claims that his trial counsel was ineffective since counsel refused to tender instructions on any lesser included offenses. Defense counsel testified at the Post-Conviction hearing that no instructions on lesser-included offenses were tendered because he believed at the time that there were no lesser included offenses of inflicting injury in the perpetration of a robbery. Furthermore, trial counsel wanted as a matter of trial strategy to make this an all-or-nothing case so as not to give the jury any alternative to conviction as charged or acquittal. Counsel thought that in view of the strong identification evidence, Appellant's only chance before the jury was to attempt to show that his minor involvement in the robbery was insufficient grounds to give him a life sentence. In his final argument before the jury, counsel argued that Appellant was...