Reid v. State
| Decision Date | 11 April 2013 |
| Docket Number | No. 20A04–1207–PC–362.,20A04–1207–PC–362. |
| Citation | 985 N.E.2d 821 |
| Parties | Jon J. REID, Appellant–Petitioner, v. STATE of Indiana, Appellee–Respondent. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from the Elkhart Circuit Court; The Honorable Terry C. Shewmaker, Judge; Cause No. 20C01–0605–FA–46.
Gary L. Griner, Griner & Company, Mishawaka, IN, for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, for Appellee.
Jon J. Reid (“Reid”) was convicted of Possession of Cocaine with Intent to Deliver, as a Class A felony 1, and Possession of a Schedule I Controlled Substance, as a Class D felony 2, and his conviction was affirmed on direct appeal. Reid subsequently filed a petition for postconviction relief, which the post-conviction court denied. He now appeals.
We affirm.
Reid presents numerous issues for our review, which we restate as:
I. Whether the post-conviction court erroneously concluded that Reid did not receive ineffective assistance of trial counsel;
II. Whether the post-conviction court erroneously concluded that Reid did not receive ineffective assistance of appellate counsel; and
III. Whether the post-conviction court erroneously denied Reid postconviction relief on the basis of newly-discovered evidence and prosecutorial misconduct.
We draw our discussion of the facts of the case from our memorandum opinion affirming Reid's conviction on direct appeal:
On May 25, 2006, at approximately 10:00 p.m., several members of the Elkhart County Interdiction and Covert Enforcement (ICE) Unit executed a search warrant at 317 Concord Avenue in Elkhart. The search warrant was based upon two controlled drug buys that occurred at that residence on May 22 and May 24. The Elkhart Special Response Team first employed a distraction device in the backyard, which was a “really loud” bang. Tr. p. 59, 76, 146–47. The officers entered the house and took the homeowners, Martin and Shellise Jiminez, into custody. Officers then tried to enter the detached garage, which was locked. However, after obtaining a key and unlocking the garage door, Lieutenant Edward Windbigler entered and found Reid—Shellise Jiminez's son—sleeping on a couch.
The cluttered garage contained the couch, a television, a Playstation video game system, a small refrigerator, clothing, and shoes, which were all located in a contained area. A search of the garage revealed a plate and a razor blade with .309 grams of cocaine sitting in plain view on a shelf, a baggie containing .024 grams of cocaine, a digital scale containing white residue, over twelve grams of cocaine in a Reebok tennis shoe that was sitting at the top of a plastic container near the television, .943 grams of powder cocaine and one Ecstasy pill in plastic baggies in the container. One of Reid's pay stubs was also found in the garage, and the officers recovered nearly 200 grams of marijuana in an upstairs bedroom of the house.
Reid v. State, Cause Number 20A05–0711–CR–640, slip op. at 1–2 (Ind.Ct.App. Apr. 24, 2008), trans. denied. In addition to Martin and Shellise Jiminez and Reid, Terrance Taylor (“Taylor”), a long-time friend of Reid, resided in the house. Id. at 6.
A jury trial was conducted from September 25 to 27, 2006. At its conclusion, Reid was found guilty of Possession of Cocaine with Intent to Deliver, and Possession of a Schedule I Controlled Substance. The trial court sentenced Reid to an aggregate term of imprisonment of thirty-five years, with two years suspended to probation.
Reid appealed his conviction, and challenged (1) the trial court's denial of his motion for a continuance due to his mother's illness; and (2) the sufficiency of the evidence underlying his convictions. This Court affirmed Reid's convictions.
On October 10, 2010, Reid filed a petition for post-conviction relief. Reid raised numerous complaints in the petition, among them that he was entitled to post-conviction relief because he received ineffective assistance of trial and appellate counsel, and because there was newly-discovered evidence in the form of testimony from Taylor and another individual that Reid did not own the drugs found in the garage, which evidence was not available at trial because a deputy prosecutor had threatened these witnesses with additional jail time.
On March 8, 2012, an evidentiary hearing was conducted, during which Reid's trial and appellate counsel, Taylor, and another individual, Justin Davis (“Davis”), provided testimony.3 During the hearing, the post-conviction court held that portions of Taylor's testimony and all of Davis's testimony, which claimed that a deputy prosecutor made threatening statements to them concerning their testimony at Reid's trial, were inadmissible hearsay. After the hearing's conclusion, the parties submitted briefing to the post-conviction court. On June 12, 2012, the post-conviction court changed its ruling on the admissibility of Taylor's testimony, but nevertheless concluded that Reid had not received ineffective assistance of counsel and that Taylor's testimony did not amount to newly-discovered evidence, and entered findings and conclusions denying Reid's petition.
This appeal ensued.
Reid appeals from post-conviction court's denial of his petition for relief. The petitioner in a post-conviction proceeding bears the burden of establishing the grounds for relief by a preponderance of the evidence. Ind. Post–Conviction Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004). When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Fisher, 810 N.E.2d at 674. On review, we will not reverse the judgment of the post-conviction court unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court. Id. 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. Id. In this review, findings of fact are accepted unless they are clearly erroneous and no deference is accorded to conclusions of law. Id. The post-conviction court is the sole judge of the weight of the evidence and the credibility of the witnesses. Id.
We first address Reid's contention that he received ineffective assistance of trial counsel, in violation of his Sixth Amendment right to counsel under the United States Constitution. We review such claims under the standard set forth by the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). “First, a defendant must show that counsel's performance was deficient.” Id. at 687. 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.
that is, a trial where the 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. A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id.
Counsel's performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption. Ben–Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000). Where it is possible to resolve a case on the question of prejudice, we should do so in order to avoid “the often nettlesome question of whether the attorney's performance was objectively unreasonable.” State v. Van Cleave, 674 N.E.2d 1293, 1296 n.3 (Ind.1996) (citing Strickland, 466 U.S. at 697). Further, we afford counsel “ ‘considerable discretion in choosing strategy and tactics, and we will accord those decisions deference.’ “ Curtis v. State, 905 N.E.2d 410, 414 (Ind.Ct.App.2009) (quoting Timberlake v. State, 753 N.E.2d 591, 603 (Ind.2001)), trans. denied. We presume counsel “ ‘made all significant decisions in the exercise of reasonable professional judgment,’ “ id. (quoting Timberlake, 753 N.E.2d at 603), and counsel's choice of strategies “will not be second-guessed even if the strategy in hindsight did not serve the post-conviction petitioner's best interests.” Id. (citing State v. Moore, 678 N.E.2d 1258, 1261 (Ind.1997)).
We shall address in turn each of Reid's contentions concerning the performance of his trial counsel.
Reid first contends that his trial counsel was ineffective because he “failed to move to suppress the drug evidence obtained by police after executing a search warrant at the residence of 317 Concord.” (Appellant's Br. at 10.) Specifically, Reid contends that, had trial counsel moved to suppress the evidence, suppression would have been granted because “[t]he search warrant was completely lacking in probable cause and any nexus to the location to be searched and was therefore invalid.” (Appellant's Br. at 10.) Reid further contends that because the drug-related evidence found in his case was located in a detached garage at 317 Concord, in which Reid was residing at the time, police were required to obtain a separate warrant for that structure and that failure to do so rendered the search and seizure unconstitutional. Trial counsel's failure to seek suppression of the drug-related evidence obtained from the garage also, Reid argues, amounted to ineffective assistance of counsel. The State responds by arguing that Reid lacked standing to...
To continue reading
Request your trial