Morgan v. State

• Decision Date: 05 October 2001
• Docket Number: No. 34S00-0006-CR-350.,34S00-0006-CR-350.
• Citation: 755 N.E.2d 1070
• Parties: Bradley D. MORGAN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

755 N.E.2d 1070

Bradley D. MORGAN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 34S00-0006-CR-350.

Supreme Court of Indiana.

October 5, 2001.

Steven C. Litz, Monrovia, IN, Attorney for Appellant.

Karen M. Freeman-Wilson, Attorney General of Indiana, Timothy W. Beam, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

SULLIVAN, Justice.

Defendant Bradley Morgan was convicted of murder for shooting Billy Wiley to death at a party. Defendant has shown neither the deficient performance nor prejudice necessary to sustain his claims that his trial lawyer was ineffective. His claim that the trial court improperly instructed the jury is not available for our review. And it was within the court's discretion to allow an expert's opinion of certain details of the crime. For these reasons, we affirm.

Background

The facts most favorable to the judgment indicate that on the evening of January 16, 2000, Defendant and Billy Wiley were at a party in Kokomo and got into a minor argument where one or both of them pushed the other. Defendant told Wiley, "I'm going to get you, I'm going to get you for this." Defendant then walked out of the party. About twenty minutes later, Defendant returned; he walked out of the bathroom with a gun in his hand and approached Wiley. Another person at the party stepped between the two, but Defendant fired a shot at Wiley. Defendant and Wiley struggled with each other and Defendant fired two more shots in rapid succession and Wiley fell onto Defendant.

Wiley died as a result of a gunshot wound to the head. Defendant was bleeding from a gunshot wound to his hand. Defendant then fled from the party to the house of his mother who drove him to St. Vincent's Hospital in Indianapolis. Defendant initially told the hospital personnel that he had fallen on some glass, but the hospital staff found fragments in his hand and called the police. When a police officer arrived, Defendant and his mother told him that one of Defendant's friends had accidentally shot him at an Indianapolis apartment complex. Defendant was charged and convicted of Murder,¹ and Defendant was sentenced to 60 years incarceration.

I

Defendant contends that he was denied his constitutional right to the effective assistance of counsel.² He argues that "his attorney failed to object to a mandatory jury instruction; failed to object to hearsay testimony; failed to object to the prosecutors' statement that [Defendant] could have come forward and spoken to the police; and failed to tender an instruction on voluntary manslaughter." Appellant's Br. at 4.

To establish a valid ineffective assistance of counsel claim, Defendant must show, first, that counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms, and, second, that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

; Lambert v. State, 743 N.E.2d 719, 730 (Ind.2001).

We have stated in past cases that the first prong of the Strickland test affords counsel "considerable discretion in choosing strategy and tactics, and we will accord that decision deference. A strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Lambert, 743 N.E.2d at 730 (quoting State v. Holmes, 728 N.E.2d 164, 172 (Ind.2000)). Regarding the second prong of the Strickland test, "[a] reasonable probability is a probability sufficient to undermine the confidence in the outcome." Id.

A

Defendant argues that counsel was ineffective for failing to object to two jury instructions.

Final instruction no. 3 read in pertinent part: "If the state did prove each of these elements beyond a reasonable doubt, you should find the defendant guilty of murder." (emphasis added). Final instruction no. 16 provided:

If, after considering all of the evidence, you have reached a firm belief in the guilt of the defendant that you feel safe to act upon that belief, without hesitation, in a matter of the highest concern and importance to you, then you will have reached that degree of certainty which excludes reasonable doubt and authorizes conviction.

(R. at 142.) (emphasis added).

Defendant argues that the emphasized language of these two instructions conflicts with the trial court's initial instruction that the jury was the judge of the law and the facts under Art. 1, § 19, of the Indiana Constitution. Specifically, Defendant argues that the trial court's use of the words "should" and "will" in the contested instructions was improper. He stated that "the jury was told how to think and act. In the first instance, the trial court told the jury what it ought to do, and in the second, it told them at what point it ought to do it." Appellant's Br. at 6.

We have held in a variety of contexts that Art. I, § 19, is not violated when the types of instructions given in this case are accompanied by an instruction informing the jury that it is the judge of the law and the facts. See, e.g., Parker v. State, 698 N.E.2d 737, 742 (Ind.1998)

; Loftis v. State, 256 Ind. 417, 420, 269 N.E.2d 746, 747-8 (1971); Mitchem v. State, 503 N.E.2d 889, 891 (Ind.1987). Defendant acknowledges that a law and the facts instruction was given here.

As to instruction no. 3, we recently reiterated that a trial court may use the word "should" in such a manner. See Wright v. State, 730 N.E.2d 713, 716 (Ind.2000)

. In Wright, this court found a similar instruction to be "instructive, and hardly offensive to any of our fundamental precepts of criminal justice." Id. We stated, "A trial court may instruct the jury that if they find that all the material allegations of the indictment or affidavit are proven beyond a reasonable doubt that they `should' convict the defendants." Id. at 716-17 (Ind. 2000) (quoting Loftis, 256 Ind. at 419-20,

269 N.E.2d at 747).

As to instruction no. 16, we have indicated that the use of the analogy about what would cause one to act without hesitation on a matter of highest personal concern and importance is neither required nor particularly desirable in explaining the concept of reasonable doubt. Winegeart v. State, 665 N.E.2d 893, 902 (Ind.1996). But we have not disapproved its use. Nor have we questioned it as a violation of Art. I, § 19—the claim Defendant asserts here.

The foregoing analysis demonstrates that instructions no. 3 and no. 16 comported with the requirements Art. I, § 19. As such, we conclude that it was within the range of reasonable attorney behavior not to object to these instructions. And because we assume competence on the part of a lawyer at trial, an action or omission that is within the range of reasonable attorney behavior can only support a claim of ineffective assistance if that presumption is overcome by specific evidence as to the performance of the particular lawyer. Woods v. State, 701 N.E.2d 1208, 1212 (Ind.1998). No such evidence has been offered here.

B

Defendant argues that counsel was ineffective for failing to object to hearsay testimony.

At trial, a security guard from St. Vincent's Hospital testified that Mrs. Morgan had given him a false account of how Defendant sustained the wound to his hand. Defendant argues that the guard's testimony was improper hearsay evidence,³ and should have been objected to. Defendant argues that counsel was ineffective for failing to object.

We do not find a valid ineffective assistance of counsel claim here because the prejudice prong of Strickland is not satisfied. The testimony of the guard was cumulative of the admissible testimony of other witnesses. Defendant's mother herself testified at trial that she had told the security guard a false story. And another

witness, Deputy Salluom, testified that Defendant himself had told him the same story. Because of the cumulative nature of the hearsay testimony at issue here, we see no basis for concluding that its exclusion would have produced a different result.

C

Defendant argues that trial counsel was ineffective for failing to object to the prosecutor's closing argument. Appellant's Br. at 7. In his closing argument, the prosecutor stated:

Well, after that, as [Defendant's trial counsel] well knows, and you're represented by an attorney, the police can't go and speak to you. If Bradley Morgan wanted to provide his version of these events to the police all he had to do was tell Mr. Ryan, `Pick up the phone, call the detectives, set up an appointment for me to give a statement.' That's all that had to be done.

(R. at 1460.)

A person in custody who is questioned by the police has the right to remain silent, Miranda v. Arizona, 384 U.S. 436, 445, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and, in general, a criminal defendant may not be penalized at trial for invoking the right to remain silent. See Doyle v. Ohio, 426 U.S. 610, 620, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976)

. Using a defendant's post-Miranda silence to impeach a defendant at trial violates the Due Process Clause of the Fourteenth Amendment. See Doyle, 426 U.S. at 619,

96 S.Ct. 2240;⁴

Miranda, 384 U.S. at 445,

86 S.Ct. 1602.

Although evidence of a defendant's post-Miranda silence is generally not admissible, the defendant may open the door to its admission. The Doyle Court acknowledged this in its decision, stating "[I]t goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest." Doyle, 426 U.S. at 619,96 S.Ct. 2240. As we explained in Willsey v. State:

[T]he central constitutional inquiry is the `particular use to which the post-arrest silence is being put.....Doyle does not impose a prima facie bar

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