Resnover v. State

• Decision Date: 27 May 1987
• Docket Number: No. 1285S515,1285S515
• Citation: 507 N.E.2d 1382
• Parties: Gregory RESNOVER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1382

507 N.E.2d 1382

Gregory RESNOVER, Appellant, v. STATE of Indiana, Appellee.

No. 1285S515.

Supreme Court of Indiana.

May 27, 1987.

Susan K. Carpenter, Public Defender, Paul Levy, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

Following a jury trial, appellant was convicted of Murder and Conspiracy to Commit Murder, a Class A felony. The court imposed the death penalty on the murder count and a fifty (50) year sentence on the conspiracy count. The convictions and sentences were affirmed on direct appeal. Resnover v. State (1984), Ind., 460 N.E.2d 922, cert. denied, 469 U.S. 873, 105 S.Ct. 231, 83 L.Ed.2d 160. Appellant's petition for post-conviction relief was denied, which adverse decision he now appeals.

The circumstances surrounding the offenses for which appellant was convicted were detailed at length in our opinion on direct appeal, Id., at 926-27, as well as in our opinion in a companion case, Smith v. State (1984), Ind., 465 N.E.2d 1105, 1111-13. The facts relevant to this appeal will be discussed as they pertain to the issues raised by appellant.

Appellant filed his post-conviction petition on October 10, 1984. After conducting two evidentiary hearings, the trial court denied the petition on July 19, 1985. Six months later, appellant filed a "Verified Motion for Relief From Judgment" in which he asked the court to set aside its judgment on his petition for purposes of a hearing and the consideration of additional evidence. That motion was also denied. Pursuant to a request by appellant, this Court consolidated the appeal from the denial of the post-conviction petition and the appeal from the denial of the motion for relief from judgment.

Having failed to carry his burden of proof in the trial court, appellant is in the position of one contesting a negative judgment. Only if the evidence is without conflict and leads to but one conclusion, and the trial court reached an opposite conclusion, will we reverse that judgment as being contrary to law. Dillon v. State (1986), Ind., 492 N.E.2d 661; Young v. State (1984), Ind., 470 N.E.2d 70.

Initially, it should be noted that appellant has presented a number of allegations of error in this appeal which were either presented in his direct appeal or were available to him at that time. Issues raised and considered on direct appeal are not to be re-litigated in post-conviction proceedings. Douglas v. State (1986), Ind., 490 N.E.2d 270. Similarly, questions which could have been presented are deemed waived in the post-conviction process, as the remedy of post-conviction relief is not a substitute for direct appeal. Ind.R.P.C.R. 1, Sec. 1(b); Tope v. State (1985) Ind., 477 N.E.2d 873; Bailey v. State (1985), Ind., 472 N.E.2d 1260. Although appellant has raised these allegations within the purview of Ind.R.P.C.R. 1, Sec. 1(a), particularly in regard to his allegation that he was denied effective assistance of trial counsel, we are not compelled to address those issues previously addressed or available to appellant on direct appeal. See Bailey, supra, at 1262-63.

Appellant contends that a number of alleged acts and omissions of his trial and appellate counsel denied him the right to effective assistance of counsel in violation of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and art. 1, Sec. 13 of the Indiana Constitution.

In addressing an allegation of ineffective assistance of counsel, this Court indulges a strong presumption that counsel rendered reasonably effective assistance and will not speculate as to what may have been the most advantageous strategy in a particular case. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; Elliott v. State (1984), Ind., 465 N.E.2d 707. The defendant must show both that counsel's performance fell below an objective standard of reasonableness and that counsel's errors and omissions were so serious as to deprive him of a fair trial. Strickland, supra.

Appellant argues that an individualized consideration of the appropriateness of his death sentence was frustrated by the unreasonable omissions of trial and appellate counsel. Those alleged omissions were trial counsel's failure to "distance" appellant from his codefendant, to object to certain jury instructions and to present an effective penalty phase defense, and appellate counsel's failure to file a reply brief to rebut misstatements of fact in the State's brief.

The premise underlying appellant's argument is that "[i]n the frenzied atmosphere that pervaded the trial in this case, a simple and undeniable fact was lost", namely that he "did not kill" the victim, Indianapolis Police Sergeant Jack Ohrberg. He asserts that this Court on direct appeal mistakenly relied on the allegation that he was the individual who actually killed Ohrberg by stepping out onto the porch of the duplex and firing additional shots into Ohrberg after he had fallen upon being hit by gunfire originating from inside the duplex.

An individualized consideration of a defendant's culpability is a "constitutional requirement in imposing the death sentence." Lockett v. Ohio (1978), 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973, 990. We cannot agree with appellant, however, that neither the trial court nor this Court adequately addressed the question of his culpability separate and distinct from that of his codefendant, Tommie Smith.

Appellant relies on Enmund v. Florida (1982), 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140, in claiming that his role in the murder was inextricably and incorrectly linked with Smith's. In that case the Supreme Court concluded that while the defendant could be convicted on a theory of vicarious liability for the felony of robbery, in the course of which murder was committed, the focus of review of his death sentence "must be on his culpability, not on that of those who committed the robbery and shot the victims". Id., at 798, 102 S.Ct. at 3377, 73 L.Ed.2d at 1152 (original emphasis). The Court ruled that the Eighth Amendment forbids the imposition of the death penalty on "one ... who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed." Id., at 797, 102 S.Ct. at 3376, 73 L.Ed.2d at 1151; see also Cabana v. Bullock (1986), 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704.

The applicability of Enmund was explicitly addressed on direct appeal. Resnover, supra, at 934-35. We determined that the facts in the instant case "in no way compare" to those presented in Enmund. Id., at 935. After reciting a number of facts, including appellant's firing of an AR-15 automatic rifle at Ohrberg when he was attempting to enter the duplex, we found that appellant's culpability "was at least equal to that of the other men in the apartment, one or all of whom caused Ohrberg's death." Id. It was further found that:

"The record shows that Appellant did, in fact, take a substantial part in the shooting at police officers which resulted in Sergeant Jack Ohrberg's death. The record clearly shows that Appellant knowingly and intentionally participated in this criminal activity which caused the death of a police officer who was serving in an official capacity." Id. at 936 (emphasis added).

Even assuming that it was Smith, and not appellant, who stepped out onto the porch, it cannot be argued that appellant did not either intend that a killing take place or intend that lethal force be employed. Enmund, supra. The determination of appellant's culpability rests not so much on an inference that he actually fired the fatal shot or shots but rather on the clearly established fact that he used deadly force to resist arrest.

In contending that his court-appointed trial counsel, Thomas Alsip, failed to "distance" him from Smith, appellant claims that Alsip failed: to argue at the end of the guilt phase that he did not kill Ohrberg; to seriously challenge the State's conspiracy theory; to use a potential defense witness; and to utilize expert assistance with regard to the State's firearms evidence.

We are unable to discern from appellant's argument exactly how Alsip would have been able to "distance" him from Smith. Alsip testified at the post-conviction hearing that, up to the commencement of trial, appellant insisted on allying himself with Smith and provided little, if anything, as a basis for Alsip to distinguish his participation from Smith's.

Even if Alsip had pursued the argument at the conclusion of the guilt phase that appellant "did not kill" Ohrberg, there was substantial evidence that appellant fired an automatic weapon from inside the duplex as Ohrberg was attempting to gain entrance through the barricaded front door. Contrary to appellant's assertion that the State's conspiracy theory was "improbable and insupportable", the evidence also supported the existence of a joint effort to resist arrest by use of deadly force. See Smith, supra at 1121.

As to the potential defense witness, Samara Palmer, appellant argues that she would have been available to testify that he was with her in a back room when the shooting commenced and that Alsip refused to ask her to testify to that effect. That argument is contradicted by Alsip's testimony, in which he stated that although he had no independent recollection of his conversation with Palmer and had no notes to refresh his memory, he was certain that he had talked with her prior to trial. Palmer testified at the post-conviction hearing that she did talk to Alsip about the case, although she later contradicted that testimony.

Further, it is a matter of speculation whether Palmer would have testified at trial. At the post-conviction hearing she refused to answer any questions concerning the events of ...