Mott v. State, 38S00-8706-CR-553

• Decision Date: 13 December 1989
• Docket Number: No. 38S00-8706-CR-553,38S00-8706-CR-553
• Citation: 547 N.E.2d 261
• Parties: Jerry MOTT, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 261

547 N.E.2d 261

Jerry MOTT, Appellant, v. STATE of Indiana, Appellee.

No. 38S00-8706-CR-553.

Supreme Court of Indiana.

Dec. 13, 1989.

Stephen D. Clase, Anderson, for appellant.

Linley E. Pearson, Atty. Gen. and Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant was convicted by a jury of theft, a Class D felony, I.C. 35-43-4-2, and received a four-year sentence. This sentence was then enhanced by thirty years after the jury found the appellant to be a habitual offender, I.C. 35-50-2-8, resulting in a total sentence of thirty-four years. The evidence presented which tended to support the conviction showed that Marvin May gave Tim Gray permission to come onto his farm to cut up and cart away some obsolete farm equipment and that appellant, Gray and Charlie Brown went to May's farm, ostensibly in pursuit of this project. Upon ascertaining that May was away, appellant and Gray went into the house while Brown served as a lookout. The house was ransacked and $63.00 in coins was found in a kitchen cabinet. The three men took the money to Brown's home, where it was divided equally among them. Both Gray and Brown testified at appellant's trial.

In this direct appeal, appellant asserts that he was denied effective assistance of counsel in violation of his Sixth Amendment rights, that prosecutorial and police misconduct denied him a fair trial and caused him to be convicted on insufficient evidence, and that the habitual offender sentence enhancement cannot stand because it was based on documents erroneously admitted and on insufficient evidence. We find no merit in appellant's contentions and affirm the decision of the trial court.

I.

To prevail on a claim of ineffective assistance of counsel, appellant must satisfy the two-part test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). He must demonstrate that the performance of his counsel fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 369, 88 L.Ed.2d 203, 209 (1985); see also Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986). Counsel is presumed to be competent, and performance is reviewed with deference and without the distortions of hindsight. Duncan v. State (1987), Ind., 514 N.E.2d 1252, 1253. Appellant contends that questions by his counsel put to defense witnesses on direct examination elicited answers which so prejudiced his case and which opened the door to such damaging cross-examination that he was denied his Sixth Amendment rights.

During the direct examination of three defense witnesses, testimony emerged regarding uncharged acts of misconduct by appellant, which he claims prejudiced him in the eyes of the jury by portraying him as a violent, angry womanizer. Two of the challenged episodes involved questioning by appellant's attorney which was apparently designed, first, to establish that an alibi witness had no motivation to lie on appellant's behalf and, second, to address a situation involving a barroom brawl which had already been brought out through the testimony of a prosecution witness. During the third challenged episode, counsel elicited from the witness, the former cellmate of Tim Gray, testimony which called into question the veracity and reliability of Gray's account of the charged crime. However, the scope of the direct examination allowed the State, on cross-examination, to pursue in more detail the witness's knowledge of another crime for which appellant was under investigation in Ohio.

While in retrospect, one might conclude that the strategy and performance at issue was not the best, isolated instances of poor strategy or inartfully executed examinations do not necessarily amount to ineffectiveness of counsel. Duncan, 514 N.E.2d 1252; see also United States v. Weston, 708 F.2d 302, 307 (7th Cir.), cert. denied, 464 U.S. 962, 104 S.Ct. 397, 78 L.Ed.2d 340 (1983) (where counsel misspoke through inadvertence, rather than through ignorance of possible prejudice, "such a slip of the lip ... during the pressures of trial was [not] so egregious as to warrant reversal" on an ineffective assistance of counsel claim). A review of the entire record reveals that counsel zealously represented appellant's interests. Counsel presented alibi witnesses, conducted vigorous cross-examinations, and attempted to discredit the most damning evidence against appellant, Gray's account of the crime, by presenting a witness who testified that appellant's alleged accomplice had lied about appellant's involvement in the theft. We hold that counsel's decision to call these defense witnesses and to question them as he did does not fall below the applicable standard governing attorney performance. Appellant has failed to satisfy the first requirement of the Strickland test; therefore, it is unnecessary for us to reach the prejudice portion of the test.

II.

Appellant contends that the police and prosecutor committed misconduct which denied him a fair trial. He claims that the tactics employed to secure the testimony of Tim Gray, alternately threatening to add and promising to drop charges against him depending on his decision to testify, rendered his testimony inherently unreliable and caused appellant to be convicted on insufficient evidence. The acquisition of a statement known to have been tailored by a witness to conform to the expectations of his interrogators so as to escape the physical or mental pressures being exerted on him and the knowing use of such perjured testimony constitutes misconduct by the State and is a denial of due process. See United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Otherwise, threats and promises made during plea bargain negotiations are permissible so long as the State has the power to enforce them when the agreement is entered into. Daniels v. State (1988), Ind., 531 N.E.2d 1173; Schmanski v. State (1984), Ind., 466 N.E.2d 14. There is no evidence that Gray was subject to such impermissible, irresistible pressure as to compel him to perjure himself, and further, the details of Gray's plea bargain and the fact that he would not have testified against appellant otherwise were before the jury. It was for them to factor this information into their assessment of the credibility and weight to be accorded to his testimony. Gebhart v. State (1988), Ind., 525 N.E.2d 603; Griffin v. State (1986), Ind., 493 N.E.2d 439. Neither the police nor the prosecutor...