Osborne v. State

• Decision Date: 15 August 1985
• Docket Number: No. 983S332,983S332
• Parties: Everett OSBORNE, Jr., Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
• Court: Indiana Supreme Court

Page 376

481 N.E.2d 376

Everett OSBORNE, Jr., Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).

No. 983S332.

Supreme Court of Indiana.

Aug. 15, 1985.

Susan K. Carpenter, Public Defender, Sheila K. Zwickey, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Theodore E. Hansen, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

The petitioner-appellant, Everett Osborne, Jr., is before this Court appealing from the denial of his petition for post-conviction relief. He was charged initially with kidnapping, Ind. Code Sec. 35-1-55-1 (Burns 1975) and armed felony (robbery), Ind. Code Sec. 35-12-1-1 (Burns 1975). Appellant was found guilty by a jury. He received a life sentence and a fifteen-year consecutive term of imprisonment. His convictions were affirmed on direct appeal in Osborne v. State (1978), 268 Ind. 392, 375 N.E.2d 1094.

Appellant raises four issues in this appeal from denial of post-conviction relief: (1) whether he had effective assistance of counsel at his trial; (2) whether the content of instruction number twelve presents grounds for fundamental error; (3) whether the sentence imposed was excessive; (4) whether the post-conviction court had jurisdiction to rule on appellant's petition for post-conviction relief.

These are the facts pertinent to this appeal. The victim was engaged in a conversation with appellant at a bar when appellant tried unsuccessfully to sell the victim a gun. The victim later agreed to give appellant a ride home. The victim drove while appellant sat in the front passenger seat. After driving for a while, appellant jumped over into the back seat and pointed a gun at the victim's head. Appellant told the victim to give him his wallet. Appellant almost immediately forced the victim to stop the car and get out and open the trunk. Some additional items were then taken by appellant from the trunk. Appellant then forced the victim to get back into the car and to drive it in accordance with his instructions, often directing the victim to stop the car and then resume driving. At one such stop appellant fired shots at the interior of the victim's car. Appellant's gun was continually pointed at the victim, and he threatened to kill the victim several times during the course of these crimes. Appellant eventually directed the victim to drive to a trailer park which was appellant's final destination. After appellant left the victim's car, the victim reported the crimes to the police.

Appellant went to a friend's trailer where he spent the night. He told her that a man tried to steal the guns which appellant offered to sell this man. Consequently, appellant took the man's money and recovered his guns. Appellant also told her that he shot out the windshield of this man's car.

The following pertinent findings were made by the post-conviction court:

(1) The examining physicians of Madison State Hospital stated in a written report that appellant did not exhibit signs or symptoms of psychosis. Appellant was diagnosed as having an anti-social personality.

(2) Appellant's presentence, psychological, evaluation report also stated that there was no evidence that appellant was psychotic.

(3) Trial counsel Houston conferred with appellant's former counsel Vance and obtained copies of all documents which Vance had relevant to this cause.

(4) Appellant never requested or indicated to Houston his desire to enter a plea of not guilty by reason of insanity.

I.

Appellant's ineffective assistance of counsel argument is predicated on the following five errors allegedly committed by trial counsel Houston: (1) failure to raise the defenses of voluntary intoxication and insanity; (2) failure to object to the testimony of the only defense witness, who appeared to be intoxicated; (3) failure to interview or subpoena potential defense witnesses suggested by appellant; (4) failure to elicit on cross-examination of State witnesses testimony favorable to appellant; (5) failure to challenge instruction number twelve.

To succeed on an ineffective assistance of counsel claim, appellant must satisfy the Strickland performance-prejudice standard. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. The performance component requires appellant to show that counsel's performance was deficient. The attorney performance standard is reasonably effective assistance which is objectively measured by the prevailing professional norms. To satisfy this criterion, appellant must overcome the strong presumption that counsel's conduct lies within the wide range of reasonable professional assistance. The prejudice component requires appellant to show that counsel's unreasonable performance not only prejudiced the defense, but also that this prejudice undermined the reliability and fairness of the proceeding.

Appellant's first claim is that Houston failed to raise the defenses of voluntary intoxication and insanity. Assuming arguendo that a voluntary intoxication defense should have been presented, there is no merit to appellant's contention. The court's final instruction number sixteen, which was requested by the State, recited that voluntary intoxication may relieve appellant from criminal responsibility if appellant had been so intoxicated that he was incapable of forming specific intent. While appellant's counsel did not raise this defense, the Strickland prejudice component is not satisfied where the jury is so instructed.

Appellant also maintains that Houston should have raised an insanity defense. Appellant had been voluntarily admitted to Madison State Hospital and was arrested for the present offenses while he was hospitalized. Houston testified at appellant's post-conviction hearing that he was aware of appellant's hospitalization. Houston also testified that he discussed insanity as a potential defense with his partner. Houston did not recall appellant requesting this defense or discussing the defense with appellant. However, Houston felt that he probably did discuss the insanity defense with appellant. While Houston's partner suggested that the insanity defense be raised, Houston researched the relevant statutes and decided against this strategy.

The decision to interpose the insanity defense is a matter which requires trial counsel to exercise his professional skills and judgment. Trial counsel's decision not to raise the insanity defense is a matter of strategy and does not support a claim of ineffective assistance of counsel. Field v. State (1981), Ind., 426 N.E.2d 671.

Appellant's second claim is that Houston failed to object to the testimony of his only defense witness, who apparently came to court intoxicated. Houston testified at appellant's post-conviction hearing that he had believed this defense witness to be intoxicated. However, trial counsel is not responsible for the intoxicated state of the defense witness. Moreover, direct examination of this defense witness was limited, which may reflect the tactical decision of trial counsel to excuse the witness after what Houston believed to be an appropriate length of examination under the circumstances.

Appellant also maintains that he did not receive any beneficial evidence from this defense witness's testimony. Trial counsel's assistance does not become ineffective because a defense witness's testimony, in hindsight, does not produce beneficial evidence.

Appellant's third claim is that Houston failed to interview or subpoena witnesses whom appellant believed to be beneficial to his case. As a general proposition, the decision whether to call a particular witness is encompassed within the attorney's trial strategy. Absent a clear showing of injury and prejudice, we will not declare counsel ineffective for failure to call a witness. McCann v. State (1983), Ind., 446 N.E.2d 1293. In the case at bar, Houston did question several of these potential defense witnesses but this investigation did not reveal any positive witness evidence. Once again Houston made a tactical decision which does not support an ineffective assistance of counsel claim.

The failure of the cross-examination of State's witnesses to elicit testimony favorable to appellant comprises appellant's fourth claim. On cross-examination the victim's frequent alcohol consumption and prior inconsistent statements were challenged. Cross-examination of another State's witness emphasized appellant's claim that the victim tried to steal appellant's guns. Another State's witness stated on cross-examination that she could not positively identify the previously admitted guns as those which she saw in appellant's possession the night of the crimes. The record shows that Houston vigorously cross-examined the State's witnesses. In any event, the nature and extent of cross-examination is a matter of strategy delegated to trial counsel.

Appellant's final claim is that trial counsel failed to challenge instruction number twelve. Instruction number twelve states, in pertinent part: "It is ordinarily reasonable to infer that a person intends the natural and probably [sic] consequences of acts knowingly done or knowingly omitted." Appellant maintains that this instruction impermissibly shifted the burden of proof on the element of intent. Since the content of this instruction is permissible, Davidson v. State (1982), Ind., 442 N.E.2d 1076, the failure of trial counsel to object to a proper instruction does not support an...