Palmer v. State, 49S02-9012-PC-783

• Decision Date: 13 December 1990
• Docket Number: No. 49S02-9012-PC-783,49S02-9012-PC-783
• Parties: Michael D. PALMER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 601

563 N.E.2d 601

Michael D. PALMER, Appellant, v. STATE of Indiana, Appellee.

No. 49S02-9012-PC-783.

Supreme Court of Indiana.

Dec. 13, 1990.

Michael D. Palmer, pro se.

Linley E. Pearson, Atty. Gen. and John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

ON CRIMINAL PETITION TO TRANSFER

GIVAN, Justice.

This is an appeal from the denial of a petition for post-conviction relief. In an opinion published at 553 N.E.2d 1256, the Court of Appeals reversed the trial court's denial of appellant's petition for post-conviction relief. We grant transfer and set aside the opinion of the Court of Appeals.

After a trial which ended in a hung jury, appellant was retried and convicted of murder in May of 1980. That conviction was affirmed by this Court in Palmer v. State (1981), Ind., 425 N.E.2d 640. In March of 1984, appellant filed a petition for post-conviction relief. Following a hearing, the petition was denied in 1987. He was represented by the Indiana Public Defender. However, he brings this appeal pro se.

Appellant claims the post-conviction court erred in concluding that not all issues contained in his petition were proper subjects for review in a post-conviction proceeding. The record shows that separate counsel represented appellant in his trial and on his direct appeal. Thus the competency of trial counsel was fully available to appellate counsel as well as many other issues which appellant attempted to raise in his post-conviction petition. Ind.Post-Conviction Rule 1.

Because appellant also raises the competency of appellate counsel, we turn to his specific allegations of error. He claims the post-conviction court erred by not concluding that appellant had been denied a fair trial based on the violation of his constitutional right to confront Dr. Josefino Aguilar. In appellant's first trial, which ended in a hung jury, Dr. Aguilar testified concerning the autopsy which he performed on the decedent. At the second trial, Dr. Aguilar was not present. However, Dr. Benz testified to interpret Dr. Aguilar's written autopsy report. There was no defense objection to Dr. Benz's testifying.

In Dr. Aguilar's report, he referred to the term "abrasion collars" which are marks surrounding a bullet wound caused by the rotation of the bullet against flesh. These marks are used to distinguish the entrance wound from the exit wound. However, Dr. Benz did not testify as to "abrasion collars." Appellant contends that this lack of testimony on the part of Dr. Benz deprived the jury of adequate information as to the specific path each bullet took upon entering the decedent's body.

Dr. Aguilar had testified that the decedent sustained a bullet wound in the face which travelled from front to back and another bullet wound in the hip which also travelled from front to back. Appellant points out that witness William Taylor testified that as the victim lay on the ground with his upper body propped up on his right elbow looking up at appellant, the appellant fired a shot while standing over the victim. Presumably this was the shot that struck the victim in the face. Appellant argues that because the second jury was deprived of the evidence concerning the path of the bullet, they were misled into believing that Taylor's testimony was accurate.

Appellant hypothesizes that Taylor's testimony could not be accurate if Dr. Aguilar's description of the path of the bullet was correct. We cannot agree with appellant's assessment of this testimony. Taylor's testimony is entirely consistent with the shot being fired point blank into appellant's upturned face. We find no merit in appellant's argument and thus see no harm in the omission of the "abrasion collars" testimony.

Appellant also claims that Dr. Benz minimized the injuries the victim sustained as the result of a bullet wound in the hip and lower abdomen, whereas Dr. Aguilar's testimony showed extensive damage to the internal organs and to the muscles in the victim's thigh. Given Dr. Aguilar's testimony, appellant contends it would have been impossible for the victim to have run as far as testimony indicated with such extensive injuries. Notwithstanding the extent of the injury, the evidence in this case is overwhelming that the victim was shot in the hip while running and that he continued to travel a short distance after being shot. We see nothing in this evidence which would prevent the jury from concluding that the victim was shot while running and that the shot was fired by appellant.

We further would point out that the circumstances of Dr. Benz's testimony concerning Dr. Aguilar's findings and the results thereof were facts well known to appellate counsel at the time of the direct appeal and could have been raised therein. A post-conviction relief hearing is not the proper forum for the adjudication of matters which could have been raised on direct appeal. P-C.R. 1.

Appellant claims the post-conviction court erred in failing to find that appellant had been denied a fair trial based on the violation of his constitutional right to confront Brenda Jones, who had been a State's witness at the first trial. During the second trial, the State informed the court that they had been unable to locate Jones and that with the approval of the defendant they wished to read the transcript of her testimony given at the first trial. Appellant's trial counsel specifically stated that he had no objection to the reading of that testimony.

At the post-conviction hearing, appellant's counsel produced an affidavit from Jones that she in fact was available to testify at the second trial. However, also at the post-conviction hearing, appellant's trial counsel testified that he was unable to locate Jones and determined that it was in appellant's interest to allow her earlier testimony to be read because it aided appellant in his claim of self-defense. Thus the issue was specifically waived by appellant during his second trial. See Lee v. State (1988), Ind., 519 N.E.2d 146.

Here again, this is an issue which was available to appellate counsel in the original appeal; thus it is not available as an issue in a post-conviction hearing. P-C.R. 1.

Appellant claims the post-conviction court erred by not concluding that appellant had been denied a fair trial based upon the prosecutor's failure to correct false testimony of its witness, Dr. James Benz. Appellant argues that Dr. Benz's testimony did not correctly follow the autopsy report made by Dr. Aguilar and that when the State failed to correct the discrepancy it denied appellant his constitutional right. However, Dr. Aguilar's autopsy report was entered in the second trial as State's Exhibit No. 20 without objection from appellant. After the admission of this exhibit, Dr. Benz testified that he had read the report and proceeded to draw certain conclusions therefrom. Thus any discrepancy between Dr. Aguilar's report and Dr. Benz's interpretation thereof was available to appellant's trial counsel and also was submitted to the jury for their evaluation. Appellant's presentation now is merely an attempt to have this Court reweigh that evidence. This we will not do. Alfaro v. State (1985), Ind., 478 N.E.2d 670. Here again we would point out that this was a matter clearly available to the original appellate counsel and is not a proper subject for examination in a post-conviction hearing. P-C.R. 1.

Appellant contends the post-conviction court erred in not finding that the jury was instructed improperly as to voluntary manslaughter. During the trial, the court gave an instruction to the jury indicating "sudden heat" was an element of voluntary manslaughter which was a pattern jury instruction taken from a book furnished to trial judges for that purpose.

The post-conviction court made the observation that both trial and appellate counsel felt the...