Montgomery v. State

• Decision Date: 22 March 2004
• Docket Number: No. 58A01-0304-CR-139.,58A01-0304-CR-139.
• Parties: Robin L. MONTGOMERY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

804 N.E.2d 1217

Robin L. MONTGOMERY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 58A01-0304-CR-139.

Court of Appeals of Indiana.

March 22, 2004.

Alison T. Frazier, Eckert Alcorn Goering & Sage, LLP, Madison, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Justin F. Roebel, Matthew D. Fisher, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAILEY, Judge.

Case Summary

Robin L. Montgomery ("Montgomery") appeals his convictions for two counts of arson, as Class B felonies,¹ and fraud, a Class D felony.² We reverse his convictions and remand for a new trial.³

Issues

Montgomery raises eight issues, one of which we find dispositive: whether counsel rendered ineffective assistance. In order to determine whether retrial is permissible, we also examine the sufficiency of the evidence supporting Montgomery's convictions. Finally, we address whether Montgomery's convictions for the two arson counts violate principles of double jeopardy.⁴

Facts and Procedural History

Montgomery owned a house in Rising Sun, Indiana, wherein he and his girlfriend Jodi Gould ("Gould") lived. On April 3, 2000, Gould was vacuuming in a downstairs bedroom when she accidentally vacuumed an extension cord to an antique lamp. The lamp switch did not work after this incident. That evening, Montgomery and Gould had an argument, and Gould left the house to go to the American Legion. According to Gould, Montgomery called Gould after she left and told her that he was going to "shoot [her] dog and have a wiener roast with [her] stuff." Tr. 578.

That night, John Wolfe ("Wolfe"), a neighbor who lived across the street from Montgomery's house, observed Montgomery leave the residence while Wolfe was smoking a cigarette on his front porch. Approximately five or six minutes later, Wolfe went inside. Wolfe noticed an "orange glow" through his bathroom's privacy window, returned to the front porch and saw flames "shooting out the lower left side" of Montgomery's house. Tr. 373. Wolfe called 9-1-1 and reported the fire at 12:13 a.m.

After responding to the scene, Deputy Rodney Rimstidt ("Deputy Rimstidt") of the Ohio County Sheriff's Department located Gould at a hotel and interviewed her to determine what caused the fire. Gould told Deputy Rimstidt that Montgomery told her he was going to kill her dog and burn down the house. Deputy Rimstidt also interviewed Montgomery, who told Deputy Rimstidt that he had heard about the fire from his brother. Deputy Rimstidt checked Montgomery's Caller ID system, but did not discover any incoming calls from Montgomery's brother.

Deputy Andrew Long ("Deputy Long") of the State Fire Marshall's Office investigated the fire scene and concluded that two fires had been set, one in the middle bedroom and one in the upstairs bedroom. Deputy Long based his opinion on the burn patterns on the walls and ceilings, although Deputy Long had never received any formal training concerning fire pattern recognition. Deputy Long tested the scene for accelerants using a hydrocarbon detector, and although the detector signaled the presence of hydrocarbons, the samples taken from the scene ultimately tested negative for the presence of accelerants. Long did not inspect any electrical cord fragments later discovered by an insurance company investigator in the basement underneath where the first floor bedroom previously existed. One section of an extension cord demonstrated "beading," which is indicative of arcing in an electrical short. Tr. 733-34.

On May 22, 2001, a grand jury indicted Montgomery on two counts of arson and one count of fraud. Prior to trial, the State subpoenaed two insurance investigators, Mark Schockman ("Schockman") and Michael McGwire ("McGwire") to testify concerning their investigation of the fire scene. However, at trial, the State rested without calling either witness. Montgomery did not subpoena either witness before trial and, upon realizing that the State did not intend to call Schockman and McGwire as witnesses, was unable to serve subpoenas on them in time to have them testify at trial. Although Schockman and McGwire concluded in their investigative reports that the fire had been set, Schockman did not find evidence of a second fire in the upstairs bedroom, and McGwire could not rule out the extension cord as a source of the fire. Montgomery did not move to continue the trial in order to have Schockman or McGwire appear; instead, Montgomery read McGwire's discovery deposition to the jury. While Montgomery also took Schockman's deposition, Montgomery did not read any portion of his deposition to the jury.

On December 23, 2002, the jury found Montgomery guilty on all counts. The trial court sentenced Montgomery to twelve years, with six years suspended. This appeal ensued.

Discussion and Decision

I. Ineffective Assistance

A. Standard of Review

It is well-settled that to prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that this deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Dobbins v. State, 721 N.E.2d 867, 873 (Ind.1999). When analyzing whether counsel's performance was deficient, we begin with the presumption that counsel's performance was effective. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind.1998). The defendant must rebut this presumption through "strong and convincing evidence." Id.

Deficient performance is that which falls below an objective standard of reasonableness. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; see also Douglas v. State, 663 N.E.2d 1153, 1154 (Ind.1996)

. Prejudice exists when a claimant demonstrates that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694,

104 S.Ct. 2052; see also Cook v. State, 675 N.E.2d 687, 692 (Ind.1996).

B. Analysis

Montgomery points to several alleged errors made by trial counsel, but we focus upon the failure of Montgomery's trial counsel to subpoena two of the State's expert witnesses or, in the alternative, request a continuance when the State did not call these experts and they were unavailable for Montgomery's defense.

Here, performance by Montgomery's trial counsel was deficient. A defendant has the burden of insuring that witnesses who may aid in his or her defense are called. Jenkins v. State, 627 N.E.2d 789, 793 (Ind.1993). Although Montgomery's counsel attempted to mitigate the absence of McGwire by reading the transcript of McGwire's discovery deposition to the jury, trial counsel did not attempt to do the same with Schockman's deposition, nor did counsel make an offer to prove what Schockman's testimony would have been. See Isom v. State, 585 N.E.2d 1347, 1350 (Ind.Ct.App.1992)

(deficient performance by failing to make offer to prove absent witness's testimony). Further, Montgomery's counsel did not move for a continuance in order to secure Schockman and McGwire as witnesses. These errors fall below an objective standard of reasonableness based on prevailing professional norms. See Strickland, 466 U.S. at 694,

104 S.Ct. 2052.

Having found deficient performance, we next address whether counsel's performance prejudiced Montgomery. The absence of Schockman and McGwire was more than a minor omission. While both investigators concluded that the fire was set, their opinions differed from that of Deputy Long, the State's fire expert. Schockman apparently did not find any evidence of a second "set" fire upstairs, contrary to Deputy Long's conclusion.⁵ In this respect, Schockman's conclusion is consistent with Montgomery's expert, Thomas Hulse, who concluded that the fire on the second floor was a "drop down fire," caused by burning ceiling material that dropped to the floor and bed in the upstairs bedroom. Tr. 743. McGwire discovered the electric cord fragments in the area where Deputy Long determined that the fire was set, and McGwire could not rule out the electric cord or the antique lamp as the source of the fire. This is also consistent with Hulse's conclusion that the fire was the result of an electrical fire.

In this case, there was only circumstantial evidence of Montgomery's guilt. Indeed, in what became essentially a "battle of experts," corroborating expert testimony would have been particularly powerful, and in its absence, when available, substantially prejudicial. Moreover, the introduction of McGwire's discovery deposition is an inadequate substitute to live cross-examination when the only reason for McGwire's unavailability was counsel's failure to serve a subpoena. Without this corroborating testimony, we conclude that "there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Games v. State, 690 N.E.2d 211, 213 (Ind. 1997). Accordingly, we reverse Montgomery's convictions.⁶

II. Sufficiency of the Evidence

We must next determine whether retrial is permissible. Federal double jeopardy principles prohibit multiple convictions for the same offense. Nevertheless, these principles do not prohibit the successive prosecution of a defendant who initially succeeds in setting aside his first conviction because of some error in the proceedings leading to the conviction. Berry v. State, 725 N.E.2d 939, 944 (Ind. Ct.App.2000) (citing Lockhart v. Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988)). However, retrial is not permissible if insufficient evidence supported the conviction. Accordingly, we consider all the evidence admitted by the trial court, including erroneously admitted evidence. Id. If the evidence as a whole would have been sufficient to sustain the judgment, double jeopardy does not attach. Id.

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