Reynolds v. State

• Decision Date: 10 April 1989
• Docket Number: No. 64A03-8806-PC-185,64A03-8806-PC-185
• Citation: 536 N.E.2d 541
• Parties: Garry REYNOLDS, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
• Court: Indiana Appellate Court

Page 541

536 N.E.2d 541

Garry REYNOLDS, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).

No. 64A03-8806-PC-185.

Court of Appeals of Indiana Third District.

April 10, 1989.

Transfer Denied July 13, 1989.

Terry E. Johnston, Valparaiso, for appellant.

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

HOFFMAN, Judge.

Petitioner-appellant Garry Reynolds appeals from the denial of his petition for post-conviction relief. The facts relevant to Reynolds' appeal are summarized below.

On April 16, 1982, Reynolds was convicted of murder following a trial by jury. Reynolds filed a direct appeal in which he questioned the propriety of the trial court's ex parte communication with the jury, the admission into evidence of photographs of the deceased victim, the refusal to give tendered instructions and the sufficiency of the evidence. Reynolds' conviction was upheld by the Indiana Supreme Court. Reynolds v. State (1984), Ind., 460 N.E.2d 506.

Reynolds filed a petition for post-conviction relief on January 6, 1987, and the petition was subsequently amended. Following a hearing on the amended petition, the court entered an order denying post-conviction relief. This appeal ensued.

Consolidated and restated, the issues presented for this Court's review are whether the trial court erroneously entered a judgment of conviction on an amended information which altered the theory of prosecution and whether Reynolds was denied effective assistance of counsel during the criminal proceedings. This Court observes that both issues were available to Reynolds on direct appeal.

Issues which could have been raised by an appellant in a direct appeal may not be asserted later as grounds for post-conviction relief. Beavers v. State (1987), Ind., 512 N.E.2d 1106, 1108. Therefore, absent a demonstration of fundamental error, the issues presented by Reynolds are waived. Barker v. State (1987), Ind., 508 N.E.2d 795, 797.

The first error raised by Reynolds concerns the amendment of the charging information by the State. In the original information, filed on October 19, 1981, Reynolds was charged with knowingly or intentionally killing Mark R. Coombs "by shooting at and against the body of the said Mark R. Coombs with a certain gun loaded with gun powder and metal bullets." On March 9, 1982, the information was amended to state that Reynolds "kill[ed] another human being, to wit: Mark R. Coombs ... while committing robbery, to wit: by knowingly or intentionally taking United States currency from Mark R. Coombs by using force."

Reynolds contends that in permitting the amendment, the trial court violated subsection (e) of IND.CODE Sec. 35-3.1-1-5 (repealed and replaced by IND.CODE Sec. 35-34-1-5, effective September 1, 1982). That statute provided:

"Notwithstanding any other provision in this section, an indictment or information shall not be amended in any respect which changes the theory or theories of the prosecution as originally stated, or changes the identity of the offense charged...." Id.

An amendment which changes the charged offense in an information from murder to felony murder does alter the theory of the prosecution. If Reynolds had interposed an objection to the amendment, the trial court would have been required to disallow the amended information. See Abner v. State (1986), Ind., 497 N.E.2d 550 (IND.CODE Sec. 35-3.1-1-5 does not contemplate exercise of discretion by trial court). Yet Reynolds neither objected at trial nor raised the issue of the amended information on direct appeal. The question brought to this Court, then, is not whether the trial court committed reversible error when it allowed the State to amend the information, but whether the error was fundamental.

Fundamental error has been variously described as a failure to meet the requirements of due process of law, gross error which offends the concept of criminal justice, and the denial of fundamental due process. Nelson v. State (1980), 274 Ind. 218, 219, 409 N.E.2d 637, 638. To rise to the level of fundamental error, an error must constitute a clearly blatant violation of basic and elementary principles, and the harm or potential for harm must be substantial and appear clearly and prospectively. Id. at 220, 409 N.E.2d at 638.

The accomplishment of a change in charges by amendment, although in contravention of IND.CODE Sec. 35-3.1-1-5, did not constitute fundamental error. The State could have achieved the same result by dismissing the information and refiling the charges; that strategy would not have been proscribed by the statute of limitations, IND.CODE Sec. 35-41-4-2, or the speedy trial rule, Ind. Rules of Procedure, Criminal Rule 4. Because there is no showing of fundamental error, the issue of the amended information which altered the theory of the prosecution is waived.

As his second ground for post-conviction relief, Reynolds asserts that the following incidents, individually and cumulatively, demonstrated ineffective assistance of counsel during the criminal proceedings:

1. trial counsel's failure to object to ex parte communication between the foreman of the jury and the trial judge;

2. trial counsel's failure to object to the filing of an amended information changing the charged offense from murder to felony murder;

3. trial counsel's failure to present evidence regarding Reynolds' mental capacity, intoxication and duress at the time the charged offense occurred;

4. trial counsel's failure to object when the jury was permitted to view final instructions which had deletions and extraneous markings;

5. trial counsel's failure to object to improper questions and arguments by the prosecutor; and

6. trial counsel's failure to present Reynolds in the most favorable light at sentencing.

To prevail on a claim of ineffectiveness of counsel, a petitioner must prove that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. McChristion v. State (1987), Ind., 511 N.E.2d 297, 300. Additionally, the petitioner must prove that counsel's failure to function was so prejudicial as to deprive him of a fair trial; that is, the petitioner must demonstrate that the conviction or the sentence resulted from a breakdown in the adversarial process that rendered the result unreliable. Id. In meeting this burden, the petitioner must overcome by strong and convincing evidence a presumption that counsel has prepared and executed his client's defense effectively. Id.

For his first example of inadequate representation, Reynolds points to trial counsel's failure to object to ex parte communication between the judge and a member of the jury. While the jury was deliberating and before it had reached a verdict, a member of the jury called the trial judge in his chambers from a telephone located in the jury room. The juror wanted to know why the State had not called a co-defendant to testify in this case. Without informing Reynolds or counsel and without calling the jury into open court, the trial judge instructed the inquiring juror that the State was not required to call the co-defendant as a witness, nor was Reynolds required to call him as a witness. After the jury had reached its verdict but before it was announced,...