Reed v. State, 32A05–1208–CR–426.
| Decision Date | 19 April 2013 |
| Docket Number | No. 32A05–1208–CR–426.,32A05–1208–CR–426. |
| Citation | 985 N.E.2d 1151 |
| Parties | Philip M. REED, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from the Hendricks Superior Court; The Honorable Mark A. Smith, Judge; Cause No. 32D04–1102–FC–36.
Paula M. Sauer, Danville, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Philip M. Reed (“Reed”) appeals his conviction, following a jury trial, for Class C felony operating a motor vehicle after driving privileges are forfeited for life.1
We affirm.
Whether Reed received effective assistance of trial counsel.
On February 24, 2011, Reed had three prior Class D felony convictions for operating a vehicle as a habitual traffic violator (“HTV”), and his driving privileges had been forfeited for life. That evening, Reed; his girlfriend, Amanda Purtell (“Purtell”); and another couple, Michelle Willyard (“Willyard”) and Joshua Casey (“Casey”); left Brazil, Indiana and went to Indianapolis to attend a concert. Purtell drove everyone to the concert in Reed's mother's car. At some point after they had arrived at the concert venue, they were asked to leave because Reed and Purtell were arguing.
The road conditions were icy when they left Indianapolis, and Reed, who was concerned about Purtell being able to drive in the icy conditions, decided to drive home. Reed, Purtell, Willyard, and Casey got into the car and headed west on Interstate 70 (“I–70”). While they were on I–70 in Hendricks County, the car hit an icy patch on the interstate, spun out, and slid into a median, causing extensive damage to the car. After the accident, Willyard “lost it” and asked to be dropped off so that she could get another ride home. (Tr. 222). Purtell then drove the damaged car and dropped Willyard and Casey off at a Speedway gas station (“Speedway South station”) near State Road 267.
Around 10:30 p.m., Plainfield Police Officer Ryan Salisbury (“Officer Salisbury”) was dispatched to the Speedway South station on a report of a disturbance between two males and two females. Upon arriving at the gas station, Officer Salisbury was informed that one of the couples had gone to the McDonald's across the street while the other couple drove away in a red Dodge passenger car. Officer Salisbury then went to the McDonald's and spoke with Willyard. Willyard told Officer Salisbury that she and Casey had been in the red Dodge with Purtell and her boyfriend, who was driving the car when it crashed on I–70.
Thereafter, Officer Salisbury was dispatched to another Speedway gas station (“Speedway West station”) near U.S. 40 and the Dan Jones Expressway upon a report that the damaged red Dodge had been located. When he arrived at the Speedway West station, Officer Salisbury saw Purtell sitting in the driver's seat and Reed sitting in the passenger seat of the damaged red Dodge. Reed initially told Officer Salisbury that he had not been driving the car and claimed that the damage to the car happened three weeks prior. However, Reed later admitted that he had driven the car.
Plainfield Police Officer Brian Stewart (“Officer Stewart”) also spoke with Reed and videotaped the conversation in his police car. During the interview, Reed admitted that he was driving the car on I–70 when the car spun out on the icy highway and hit a median. Reed also admitted that his driving privileges had been forfeited for life, and that he had driven the car despite having no license. Reed claimed that he drove the car only because he did not want Purtell to drive on the icy roads.
While at the Speedway West station, Officer Salisbury spoke with Purtell and videotaped his conversation with her. Purtell admitted that Reed had been driving at the time of the accident. She pleaded with the officer not to take Reed to jail and stated that she could “cover” for him and say she was driving the whole time. (State's Ex. 6).
The State charged Reed with Class C felony operating a motor vehicle after driving privileges are forfeited for life. On May 1, 2012, the trial court conducted a jury trial. Prior to trial, Reed stipulated that, on the date of the alleged offense, his “driving privileges were validly suspended and revoked for life after having been convicted as a habitual traffic violator under I.C. 9–30–10–16.” 2 (App.109). Thus, the only issue for trial was whether Reed operated a motor vehicle.
During opening statements, Reed's counsel made clear that Reed's defense was that the State could not prove that Reed was driving the car that night because no police officer would or could testify that they saw Reed drive the car. Reed's counsel stated that, instead, the other three people in the car—all of whom had “firsthand knowledge” as to who was driving the car—were going to testify that Purtell, not Reed, was driving the car at all times that night. (Tr. 167).
During cross-examination of Officer Salisbury, Reed's counsel asked the officer if Willyard had made any comments to him regarding whether anyone in the car had been drinking alcohol on the night of the accident, and Officer Salisbury responded, “She stated that they had gone to a concert[,] that the male driver that she did not identify at the time was driving erratically and that's why she wanted to get out to have a friend come give her a ride.” (Tr. 187). At one other time during cross-examination and then during re-direct and re-cross examination, Officer Salisbury testified that all the people in the car had indicated that Reed was driving.
During Officer Stewart's direct examination, the State moved to introduce State's Exhibit 5, Reed's videotaped statement to police, wherein he admitted that he drove the car when it crashed. Reed's counsel objected based on hearsay, and the State argued that it was not hearsay and was admissible under Indiana Evidence Rule 801(d)(2) as a statement by a party-opponent. The trial court overruled Reed's objection and admitted State's Exhibit 5 into evidence.
After the State rested, Reed moved for a directed verdict, which the trial court denied. Thereafter, Reed presented testimony from Purtell, Willyard, and Casey, all of whom testified that Reed was not driving the car that night. When the State cross-examined these three witnesses about their prior statements to the police indicating that Reed was driving the car, they all testified that they were extremely intoxicated that night. These three witnesses all testified that they remembered talking to police but that they did not remember the content of their conversations with the police. More specifically, they did not remember making comments to police indicating that Reed was driving.
Reed also called Officer Salisbury as a witness during his case-in-chief. During the State's cross-examination of Officer Salisbury, the State introduced Exhibit 6, Purtell's videotaped interview with police in which she admitted that Reed was driving.
The jury found Reed guilty as charged. The trial court imposed a seven (7) year sentence to be executed at the Department of Correction. Reed now appeals his conviction, challenging the effectiveness of his trial counsel.
Reed argues that he received ineffective assistance of trial counsel. Specifically, Reed contends that his trial counsel was ineffective for: (A) failing to object to the officers' testimony and to the admission of his videotaped confession; and (B) eliciting opinion testimony from Officer Salisbury during re-cross examination.
We evaluate claims concerning denial of the Sixth Amendment right to effective assistance of counsel using the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984), reh'g denied. Reed v. State, 866 N.E.2d 767, 769 (Ind.2007). A claim of ineffective assistance of trial counsel requires a showing that: (1) counsel's performance was deficient by falling below an objective standard of reasonableness based on prevailing professional norms; and (2) counsel's performance prejudiced the defendant such that “ ‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ “ Davidson v. State, 763 N.E.2d 441, 444 (Ind.2002) (quoting Strickland, 466 U.S. at 687),reh'g denied, cert. denied. “A reasonable probability arises when there is a ‘probability sufficient to undermine confidence in the outcome.’ “ Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.2006) (quoting Strickland, 466 U.S. at 694). “Failure to satisfy either of the two prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind.Ct.App.2012) (citing French v. State, 778 N.E.2d 816, 824 (Ind.2002)).
Before proceeding to Reed's specific allegations of error, we pause to note the procedural effect of Reed bringing his claims of ineffective assistance of trial counsel on direct appeal. While this practice is not prohibited, a post-conviction proceeding is generally “ ‘the preferred forum’ “ for adjudicating claims of ineffective assistance of counsel because the presentation of such claims often requires the development of new facts not present in the trial record. McIntire v. State, 717 N.E.2d 96, 101 (Ind.1999) (quoting Woods v. State, 701 N.E.2d 1208, 1219 (Ind.1998), reh'g denied, cert. denied). If a defendant chooses to raise a claim of ineffective assistance of counsel on direct appeal, “the issue will be foreclosed from collateral review.” Woods, 701 N.E.2d at 1220. This rule should “likely deter all but the most confident appellants from asserting any claim of ineffectiveness on direct appeal.” Id. When a claim of ineffective assistance of counsel is based solely on the trial record, as it is on direct appeal, “every indulgence will be given to the possibility that a seeming lapse or error by defense counsel was in...
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