Pennycuff v. State

Decision Date26 April 2000
Docket NumberNo. 49A02-9902-CR-117.,49A02-9902-CR-117.
PartiesTerry PENNYCUFF, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court

Jodi Kathryn Rowe, Marion County Public Defender Agency, Indianapolis, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Liisi Brien, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.


ROBB, Judge.

Terry Pennycuff was found guilty by a jury of one count of child molesting, a Class D felony; two counts of child molesting, a Class C felony; one count of sexual misconduct with a minor, a Class C felony; and two counts of incest, a Class B felony. The trial court sentenced Pennycuff to twelve years, with two years suspended. We reverse, and remand for a new trial.


Pennycuff raises several issues for our review, which we consolidate and restate as:

1. Whether the admission of Pennycuff's post-Miranda silence at trial constituted fundamental error;

2. Whether Pennycuff was denied the effective assistance of trial counsel; and

3. Whether the trial court erred in tendering the reasonable doubt instructions to the jury.1

Facts and Procedural History

The facts most favorable to the verdict reveal that between 1993 and 1996, Pennycuff repeatedly had sexual contact with his biological daughter, T.P. Pennycuff's sexual relationship with T.P. began in May of 1993, when he paid her twenty dollars to view her vagina. At that time, T.P. was only thirteen years old. Pennycuff's sexual contact with T.P. later escalated to him touching and performing oral sex on T.P. In 1994, Pennycuff began having sexual intercourse with T.P. on a regular basis. Following each episode of sexual contact, Pennycuff either paid T.P. money, took her to dinner, or purchased new clothes for her. On June 1, 1996, after Pennycuff told T.P. that he thought his fiancee's young daughter was attractive, T.P. confided in her mother about the sexual contact with Pennycuff.

Consequently, the State charged Pennycuff with one count of child molesting as a Class D felony, two counts of child molesting as Class C felonies, two counts of sexual misconduct with a minor and two counts of incest. The trial court dismissed one count of sexual misconduct with a minor prior to trial. A jury later found Pennycuff guilty of all the remaining counts. The trial court sentenced Pennycuff to twelve years at the Indiana Department of Correction, with two years suspended. Thereafter, Pennycuff filed a Motion to Correct Errors, which the court denied on June 25, 1998. This appeal ensued.

Discussion and Decision
I. Doyle Violation

Using a defendant's post-Miranda silence for impeachment violates the Due Process Clause of the Fourteenth Amendment. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); U.S. Const. amend. XIV. In Doyle, the United States Supreme Court noted that Miranda warnings give the criminal defendant implicit assurances that his silence will carry no penalty. Id. at 618, 96 S.Ct. 2240. "In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial." Id. at 619, 96 S.Ct. 2240. A Doyle violation is actually a violation of the Due Process Clause's prohibition against fundamental unfairness, not a violation of the Fifth Amendment privilege against self-incrimination. See Wainwright v. Greenfield, 474 U.S. 284, 291 n. 7, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986)

. Indiana recognizes the rule set out in Doyle and does not allow prosecutors to use a defendant's post-Miranda silence as a means of impeachment. Sylvester v. State, 698 N.E.2d 1126, 1130 (Ind.1998). However, the use of pre-arrest, pre-Miranda silence is not prohibited. See Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) (refusing to extend Doyle rule to pre-arrest silence).

A. Fundamental Error

Pennycuff first contends that the trial court committed fundamental error when it allowed the prosecutor to comment on his post-Miranda silence. We disagree.

A fundamental error has been described as a substantial, blatant violation of basic principles of due process rendering the trial unfair to the defendant.

Baird v. State, 688 N.E.2d 911, 917 (Ind. 1997), cert. denied, 525 U.S. 849, 119 S.Ct. 122, 142 L.Ed.2d 99 (1998); Collins v. State, 567 N.E.2d 798, 801 (Ind.1991). The failure to object does not preclude review when such preclusion would deny the defendant "fundamental due process." Johnson v. State, 271 Ind. 145, 390 N.E.2d 1005, 1010 (1979), cert. denied, 444 U.S. 944, 100 S.Ct. 302, 62 L.Ed.2d 312 (1979). A Doyle claim may constitute fundamental error. Wilson v. State, 514 N.E.2d 282, 284 (Ind.1987). However, the fundamental error doctrine cannot become a ruse to circumvent the necessity of timely objecting to alleged errors at trial. Cox v. State, 475 N.E.2d 664, 670 (Ind.1985). The mere fact that an alleged error implicates constitutional issues does not establish that fundamental error has occurred. Wilson, 514 N.E.2d at 284.

Accordingly, demonstrating the denial of any specific constitutional right does not alone resurrect a forfeited claim. Baird, 688 N.E.2d at 917. See also Brady v. State, 575 N.E.2d 981, 987 (Ind.1991)

(right to meet witnesses face to face); Malo v. State, 266 Ind. 157, 162, 361 N.E.2d 1201, 1204-05 (1977) (alleged improper comment upon Fifth Amendment privilege to remain silent). The Indiana Supreme Court has repeatedly emphasized the narrow applicability of the fundamental error doctrine. See e.g., Ford v. State, 704 N.E.2d 457, 461 (Ind.1998) (available only when there are blatant violations of basic and elementary principles of due process, and the harm or potential for harm cannot be denied); Coleman v. State, 703 N.E.2d 1022, 1036 (Ind.1998) (applies to only the most blatant denials of elementary due process); Stevens v. State, 691 N.E.2d 412, 420 n. 2 (Ind.1997),

cert. denied, 525 U.S. 1021, 119 S.Ct. 550, 142 L.Ed.2d 457 (1998) ("should be a rare, rather than merely an alternative claim"); Barany v. State, 658 N.E.2d 60, 64 (Ind. 1995) (it must be so prejudicial to the rights of a defendant as to make a fair trial impossible).

Pennycuff argues that the trial court committed fundamental error when it permitted the State to repeatedly comment on his post-Miranda silence during the examination of witnesses and closing argument. Our review of the record does not reveal blatant violations of basic and elementary principles of due process nor does it reveal that the claimed harm to Pennycuff was so prejudicial to make a fair trial impossible. Therefore, in the present case, we decline to apply the fundamental error doctrine to resurrect the forfeited Doyle violation.

B. Ineffective Assistance of Trial Counsel

Pennycuff also contends that he received the ineffective assistance of trial counsel. Pennycuff raises several claims of ineffective assistance of trial counsel, one of which we find dispositive: whether counsel's performance was deficient in failing to object to the State's references to Pennycuff's post-Miranda silence during the examination of witnesses and closing argument. We agree.

1. Standard of Review for Ineffective Assistance of Trial Counsel

To establish a violation of the Sixth Amendment right to effective assistance of counsel, Pennycuff must show: (1) that his counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms; and (2) a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Rondon v. State, 711 N.E.2d 506, 517-18 (Ind.1999). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. More recently, the Supreme Court of the United States held that prejudice resulting from ineffective assistance of counsel is not established unless the error rendered the result of the proceeding fundamentally unfair or unreliable. Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The two prongs of Strickland are separate and independent inquiries; hence "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed." Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

In evaluating counsel's performance, there is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment, and the burden falls on the defendant to overcome the presumption. Lee v. State, 694 N.E.2d 719, 720 (Ind.1998), cert. denied, 525 U.S. 1023, 119 S.Ct. 554, 142 L.Ed.2d 461 (1998). Isolated poor strategy or bad tactics do not necessarily constitute ineffective assistance of counsel. Whitener v. State, 696 N.E.2d 40, 42 (Ind. 1998). A deliberate choice made by an attorney for a tactical or strategic reason does not establish ineffective assistance of counsel even though the choice may be subject to criticism or ultimately proves to be detrimental to the defendant. Seaton v. State, 478 N.E.2d 51, 54 (Ind.1985). Thus, the burden of proving counsel's ineffectiveness rests squarely on the shoulders of the claimant. Allen v. State, 686 N.E.2d 760, 777 (Ind.1997), cert. denied, 525 U.S. 1073, 119 S.Ct. 807, 142 L.Ed.2d 667 (1999).

2. A Failure to Object

In the present case, the Marion County Sheriff's Office executed a search warrant of Pennycuff's residence after T.P. alleged that Pennycuff had sexually molested her. R. 337. During the execution of the search warrant, Pennycuff was interviewed in the kitchen of his home by Detective Carmie Godan.2 R. 195. Prior to questioning, Pennycuff signed an Advice of Rights form,3 which...

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    • United States
    • Indiana Appellate Court
    • 28 Octubre 2004 grave peril. First, the comment was isolated and constituted only one part of the entire closing argument. Cf. Pennycuff v. State, 727 N.E.2d 723, 733 (Ind.Ct.App.2000) (holding no fundamental error occurred despite repeated references to defendant's post-Miranda silence throughout trial......
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    • 18 Abril 2001 was ineffective for failing to object to evidence that violated Pennycuff's rights under Doyle v. Ohio.1 Pennycuff v. State, 727 N.E.2d 723 (Ind.Ct. App.2000). We conclude that the caselaw points to a different How Pennycuff's Trial Unfolded The State's first witness at trial was Pen......
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    ...nevertheless fail to reveal reversible error. Under some circumstances, a Doyle violation may be harmless error. Pennycuff v. State, 727 N.E.2d 723, 729 (Ind.Ct.App. 2000). If we can conclude beyond a reasonable doubt that the error did not influence the jury verdict, the error is harmless.......
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