Overstreet v. State, No. 41S00-0306-PD-249.

Docket NºNo. 41S00-0306-PD-249.
Citation877 N.E.2d 144
Case DateNovember 27, 2007
CourtSupreme Court of Indiana
877 N.E.2d 144
Michael Dean OVERSTREET, Appellant (Petitioner below),
v.
STATE of Indiana, Appellee (Respondent below).
No. 41S00-0306-PD-249.
Supreme Court of Indiana.
November 27, 2007.

[877 N.E.2d 149]

Susan K. Carpenter, Public Defender of Indiana, Steven H. Schutte, Deputy Public Defender, Thomas C. Hinesley, Deputy Public Defender, Kathleen Cleary, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Appeal From The Denial Of Post-Conviction Relief

RUCKER, J.


Summary

A jury convicted Michael Dean Overstreet of murder, rape, and criminal confinement in connection with the 1997 strangulation death of 18-year-old Kelly Eckart. The jury recommended a sentence of death, and the trial court accepted the recommendation. On direct appeal we affirmed Overstreet's conviction and sentence of death. Overstreet v. State, 783 N.E.2d 1140 (Ind.2003), cert. denied, 540 U.S. 1150, 124 S.Ct. 1145, 157 L.Ed.2d 1044 (2004). Thereafter, Overstreet filed a petition for post-conviction relief, which the post-conviction court denied after a hearing. He now appeals that denial raising several issues for our review, at least two of which are waived because they were known and available at the time of Overstreet's direct appeal,1 and another three are barred because of the doctrine of res judicata.2 We address the remaining issues,

877 N.E.2d 150

which we rephrase as follows: (a) was Overstreet denied the effective assistance of trial counsel; (b) was Overstreet denied the effective assistance of appellate counsel; (c) did Overstreet receive a fair post-conviction proceeding; and (d) is Overstreet incompetent to be executed because of his mental illness.

Facts3

A detailed recitation of the facts is set forth in our opinion on direct appeal. See Overstreet, supra. We summarize them here as follows. On September 30, 1997, the partially clothed body of Kelly Eckart was discovered in a ravine near Camp Atterbury in Brown County. She had been strangled to death with a strap from her bib overalls and a shoestring from her shoes. Three days before, in the early morning hours of September 27, 1997, Overstreet telephoned his brother Scott Overstreet and asked Scott to meet him at a motel in Franklin. Scott complied and met Overstreet in the motel parking lot. Overstreet informed Scott that he needed Scott to drive him in his van to Edinburgh. About fifteen minutes into the ride, Overstreet told Scott that he had changed his mind and now wanted to go to Camp Atterbury. When questioned why he wanted to go to Camp Atterbury, Overstreet replied, "I took a girl." Tr. at 3226. Scott drove to a gravel turnaround in a remote area of Camp Atterbury where he left the girl and Overstreet. Before doing so Overstreet asked Scott to return in a couple of hours and pick him up. Scott refused, and Overstreet instructed him to contact Overstreet's wife Melissa and tell her to drive the van and pick him up in a couple of hours at a nearby rifle range.

Melissa arrived at the rifle range around 3:30 a.m. As Overstreet approached the van, he was sweating, his shirt was unbuttoned, and he was carrying a blanket and a rifle. When Melissa asked why he was out so late at the rifle range, Overstreet responded that if anyone asked concerning his whereabouts she should tell them that he was out drinking with friends. Melissa drove Overstreet home, and he went to bed.

The following day, Melissa accompanied Overstreet to a car wash where he cleaned the back of his van. Despite the fact that the front part of the van was described by Melissa as "trashy," Overstreet spent over an hour cleaning only the back of the van. Tr. at 3883.

About a month after Eckart's body was discovered, police received a tip that led to the questioning of Scott about Kelly Eckart's disappearance. Scott led police to the gravel turnaround at Camp Atterbury, where police found several of Eckart's personal items.

As a result of a search warrant, investigators recovered evidence from Overstreet's home, including the blanket Overstreet was carrying the night Melissa picked him up at the rifle range. They also recovered a hand drawn map of an area of Brown County near Camp Atterbury

877 N.E.2d 151

depicting the same area where Eckart's body was discovered. Fibers recovered from Eckart's shirt were consistent with fibers taken from the blanket. And fibers found on Eckart's overalls were consistent with fibers recovered from inside Overstreet's van. DNA testing revealed that sperm found inside Eckart's body and on her underwear was consistent with that of Overstreet.

Procedural History

The State charged Overstreet with murder, felony murder, rape as a Class B felony, and confinement as a Class B felony. Tr. at 923. The State sought the death penalty based on three aggravating circumstances: (a) Overstreet committed the murder by intentionally killing Kelly Eckart while committing or attempting to commit rape; (b) Kelly Eckart was the victim of rape for which Overstreet has been convicted; and (c) Kelly Eckart was the victim of confinement for which Overstreet has been convicted. Id. at 962.

The trial was held from April 24 through May 18, 2000. The jury convicted Overstreet as charged and recommended the death penalty. After conducting an independent evaluation the trial court accepted the jury's recommendation. Among other things the trial court determined that the State proved beyond a reasonable doubt that at least one of the charged aggravators, the intentional killing while committing rape, outweighed Overstreet's mitigating evidence, and that death was the appropriate sentence. The trial court then entered judgment for the murder, rape, and Class B felony confinement convictions and sentenced Overstreet to death. The trial court also imposed consecutive sentences of twenty years for each of the rape and criminal confinement convictions.

On direct appeal we affirmed Overstreet's convictions and death sentence. On Indiana double jeopardy grounds we reduced Overstreet's conviction for criminal confinement as a Class B felony to a Class D felony, vacated his sentence of twenty years for that offense, and remanded the cause to the trial court for resentencing. Thereafter, Overstreet filed a petition for post-conviction relief, which the post-conviction court denied after a hearing. This appeal followed. Additional facts are discussed below as necessary.

Standard of Review for Post-Conviction Proceedings

The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004). When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Id. To prevail from the denial of post-conviction relief, a petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind.1993). Further, the post-conviction court in this case made findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). Although we do not defer to the post-conviction court's legal conclusions, "[a] post-conviction court's findings and judgment will be reversed only upon a showing of clear error — that which leaves us with a definite and firm conviction that a mistake has been made." Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) (citation omitted).

Standard of Review for Ineffective Assistance of Counsel

Most of Overstreet's complaints center on the alleged shortcomings of both his trial and appellate lawyers. To establish

877 N.E.2d 152

a post-conviction claim alleging a violation of the Sixth Amendment right to effective assistance of counsel, a defendant must establish before the post-conviction court the two components set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Williams v. Taylor, 529 U.S. 362, 390, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). First, a defendant must show that counsel's performance was deficient. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. This requires a showing that counsel's representation fell below an objective standard of reasonableness and that counsel made errors so serious that counsel was not functioning as "counsel" guaranteed to the defendant by the Sixth Amendment. Id. Second, a defendant must show that the deficient performance prejudiced the defense. Id. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, meaning a trial whose result is reliable. Id. To establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052. A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id. Further, counsel's performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption. Ben-Yisrayl, 729 N.E.2d at 106.

I.
Ineffective Assistance of Counsel — Pre-Trial

Overstreet contends that trial counsel rendered ineffective assistance for failing to perfect a timely interlocutory appeal. The essential facts are these. Prior to trial, counsel filed a motion requesting the transcript and exhibits presented to the grand jury that was impaneled to investigate Scott's involvement in the death of Kelly Eckart. The trial court granted the motion. Thereafter counsel filed a motion specifically requesting the following additional grand jury information: comments made by the prosecutor when presenting the case to the grand jury, the instructions, and the charges or any information regarding...

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132 practice notes
  • People v. Nelson
    • United States
    • New York Court of Appeals
    • April 5, 2016
    ...559 U.S. 1058, 130 S.Ct. 2365, 176 L.Ed.2d 578 [2010] ; Norris v. Risley, 918 F.2d 828, 830–834 [9th Cir.1990] ; Overstreet v. State, 877 N.E.2d 144, 158–159 [Ind.2007], cert. denied 555 U.S. 972, 129 S.Ct. 458, 172 L.Ed.2d 331 [2008] ; State v. Lord, 161 Wash.2d 276, 289–290, 165 P.3d 1251......
  • State v. Johnson, No. 17267.
    • United States
    • Supreme Court of Connecticut
    • August 5, 2008
    ...State v. Nordstrom, 200 Ariz. 229, 25 P.3d 717, cert. denied, 534 U.S. 1046, 122 S.Ct. 627, 151 L.Ed.2d 548 (2001); Overstreet v. State, 877 N.E.2d 144, 157 (Ind.2007) (allegation that courtroom spectators were wearing buttons depicting victim denied defendant fair trial); State v. Lord, 16......
  • People v. Nelson, No. 45
    • United States
    • New York Court of Appeals
    • April 5, 2016
    ...559 U.S. 1058, 130 S.Ct. 2365, 176 L.Ed.2d 578 [2010] ; Norris v. Risley, 918 F.2d 828, 830–834 [9th Cir.1990] ; Overstreet v. State, 877 N.E.2d 144, 158–159 [Ind.2007], cert. denied 555 U.S. 972, 129 S.Ct. 458, 172 L.Ed.2d 331 [2008] ; State v. Lord, 161 Wash.2d 276, 289–290, 165 P.3d 1251......
  • State v. Davidson, No. E2013-00394-SC-DDT-DD
    • United States
    • Supreme Court of Tennessee
    • December 19, 2016
    ...were not so inherently prejudicial as to pose an unacceptable threat to the defendant's right to a fair trial); Overstreet v. State , 877 N.E.2d 144, 159 (Ind. 2008) (finding that defendant failed to show deficient performance by counsel for failing to object or move the trial court to disa......
  • Request a trial to view additional results
132 cases
  • People v. Nelson
    • United States
    • New York Court of Appeals
    • April 5, 2016
    ...559 U.S. 1058, 130 S.Ct. 2365, 176 L.Ed.2d 578 [2010] ; Norris v. Risley, 918 F.2d 828, 830–834 [9th Cir.1990] ; Overstreet v. State, 877 N.E.2d 144, 158–159 [Ind.2007], cert. denied 555 U.S. 972, 129 S.Ct. 458, 172 L.Ed.2d 331 [2008] ; State v. Lord, 161 Wash.2d 276, 289–290, 165 P.3d 1251......
  • State v. Johnson, No. 17267.
    • United States
    • Supreme Court of Connecticut
    • August 5, 2008
    ...State v. Nordstrom, 200 Ariz. 229, 25 P.3d 717, cert. denied, 534 U.S. 1046, 122 S.Ct. 627, 151 L.Ed.2d 548 (2001); Overstreet v. State, 877 N.E.2d 144, 157 (Ind.2007) (allegation that courtroom spectators were wearing buttons depicting victim denied defendant fair trial); State v. Lord, 16......
  • People v. Nelson, No. 45
    • United States
    • New York Court of Appeals
    • April 5, 2016
    ...559 U.S. 1058, 130 S.Ct. 2365, 176 L.Ed.2d 578 [2010] ; Norris v. Risley, 918 F.2d 828, 830–834 [9th Cir.1990] ; Overstreet v. State, 877 N.E.2d 144, 158–159 [Ind.2007], cert. denied 555 U.S. 972, 129 S.Ct. 458, 172 L.Ed.2d 331 [2008] ; State v. Lord, 161 Wash.2d 276, 289–290, 165 P.3d 1251......
  • State v. Davidson, No. E2013-00394-SC-DDT-DD
    • United States
    • Supreme Court of Tennessee
    • December 19, 2016
    ...were not so inherently prejudicial as to pose an unacceptable threat to the defendant's right to a fair trial); Overstreet v. State , 877 N.E.2d 144, 159 (Ind. 2008) (finding that defendant failed to show deficient performance by counsel for failing to object or move the trial court to disa......
  • Request a trial to view additional results

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