Sims v. State

• Decision Date: 18 July 2002
• Docket Number: No. 20A03-0110-PC-328.,20A03-0110-PC-328.
• Parties: Michael SIMS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

771 N.E.2d 734

Michael SIMS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 20A03-0110-PC-328.

Court of Appeals of Indiana.

July 18, 2002.

Michael A. Dvorak, South Bend, IN, Attorney for Appellant.

OPINION

RATLIFF, Senior Judge.

STATEMENT OF THE CASE

Petitioner-Appellant Michael Sims ("Petitioner") appeals from the denial of his petition for post-conviction relief.

We affirm.

ISSUES

Petitioner presents the following issues for our review:

I. Whether the trial court committed fundamental error when it ignored ruling precedent, admitted hearsay testimony, and failed to provide due process of law by violating Petitioner's Sixth Amendment right to confront any witness against him.

II. Whether Petitioner's fundamental due process rights were violated by the admission, at trial, of pretrial lineup identification that was unnecessarily suggestive and gave rise to a substantial likelihood of misidentification.

III. Whether petitioner was denied effective assistance of counsel at the trial and appellate levels when trial counsel failed to engage in discovery on behalf of the Petitioner and appellate counsel subsequently failed to thoroughly research this issue and other issues on appeal.

FACTS AND PROCEDURAL HISTORY

On March 13, 1989, Petitioner was convicted of attempted murder, a Class A felony, rape while armed with a deadly weapon, a Class A felony, and criminal confinement, a Class B felony. The trial court sentenced Petitioner, on May 4, 1989, to a combined sentence of 120 years for these crimes.

Petitioner's conviction and sentence were affirmed by a panel of this court in an unpublished memorandum decision. Sims v. State, No. 20A04-9212-CR-426, 618 N.E.2d 66 (Ind.Ct. App. August 5, 1993).

On December 6, 1999, Petitioner filed a pro se petition for post-conviction relief and an affidavit of indigency. The post-conviction court appointed the State Public Defender to represent Petitioner. Ultimately, Petitioner obtained private counsel and filed an amended petition for post-conviction relief. On June 27, 2001, the post-conviction court held a hearing on that petition. After considering further briefing by the parties, the post-conviction court denied Petitioner's petition in an order dated September 5, 2001. This appeal ensued.¹

DISCUSSION AND DECISION

STANDARD OF REVIEW

Post-conviction procedures do not afford the convicted an opportunity for a "super-appeal." See Ben-Yisrayl v. State, 729 N.E.2d 102, 105 (Ind.2000), reh'g denied. Post-conviction procedures create a narrow remedy for a subsequent collateral challenge to convictions that must be based on grounds enumerated in the post-conviction rules. Williams v. State, 724 N.E.2d 1070, 1076 (Ind.2000). Petitioners must establish their grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).

A petitioner who has been denied post-conviction relief appeals from a negative judgment. Prowell v. State, 741 N.E.2d 704, 708 (Ind.2001). Therefore, the petitioner must convince the court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. Ben-Yisrayl, 729 N.E.2d at 106.

Since the post-conviction court entered findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we will reverse those findings and that judgment only upon a showing of clear error, or that which leaves us with a definite and firm conviction that a mistake has been made. See Prowell, 741 N.E.2d at 708; Ben-Yisrayl, 729 N.E.2d at 106.

I. HEARSAY TESTIMONY

Petitioner claims that the trial court committed fundamental error, thereby depriving him of his Sixth Amendment right to confront witnesses testifying against him, by admitting hearsay testimony over his objection. Further, he claims that the post-conviction court erred by denying his petition for post-conviction relief in which he alleges this error. More specifically, Petitioner alleges that the post-conviction court erred by finding that he had failed to sustain his burden of proof by a preponderance of the evidence, and that this issue had been addressed before in the direct appeal of his conviction and sentence.

A post-conviction court must make findings of fact and conclusions of law on all issues presented in a petition. See Allen v. State, 749 N.E.2d 1158, 1164 (Ind.2001); Ind. Post-Conviction Rule 1(6). The findings must be supported by facts, and the conclusions must be supported by the law. Allen, 749 N.E.2d at 1164. Our review on appeal is limited to these findings and conclusions. Furthermore, we apply a deferential standard of review when examining these findings and conclusions. Id.

The post-conviction court found and concluded that Petitioner was foreclosed from raising the hearsay testimony issue in his petition because that issue "was specifically ruled upon by the Indiana Court of Appeals in the memorandum opinion issued in this cause." Appellant's App. 352-53. The trial court is correct that issues available but not raised on direct appeal are waived, while issues litigated adversely to the defendant are res judicata. Allen, 749 N.E.2d at 1163.²

On direct appeal and in his petition, Petitioner argued that the trial court erred when it allowed the detective working on the case to testify on direct examination about why Petitioner's photograph was included in the photo array shown to the victim. Detective Schaffer testified as follows:

I had developed information that Michael Sims was a very strong suspect in the rape and shooting of [the victim]. I had received a tip that Michael Sims was responsible for that.

Trial Tr. 532. A panel of this court found that this testimony qualified as the kind of out-of-court statements made to police officers that are offered to show why officers took certain action after speaking with an informant or to show the direction and focus of their investigation after receiving information, and thus, are not hearsay. Sims v. State, No. 20A04-9212-CR-426, slip op. at 18, 618 N.E.2d 66 (Ind.Ct.App. August 5, 1993).

However, after Petitioner's conviction and sentence, but prior to the decision in Petitioner's direct appeal, our supreme court decided Williams v. State, 544 N.E.2d 161 (Ind. 1989). In Williams, the court held that the hearsay rule does not apply so as to require exclusion of police testimony containing out-of-court statements by third parties introduced primarily to explain why a particular course of action was taken during a criminal investigation. Id. at 162. Nonetheless, there must be a reasonable level of assurance that the testimony was not offered by the proponent nor received by the trier of fact as evidence of the truth of the third party's statement. Id. at 162-63. The supreme court reversed Williams' conviction because it found that the detective's testimony was sufficiently specific and detailed to provide the jury with a basis for making inferences that the informant had knowledge that Williams committed the offense and that Williams was therefore guilty as charged. See id. at 163. The testimony in the case at bar would seem to fall squarely within the holding of Williams, thereby making the decision reached on this issue in Petitioner's direct appeal to be at odds with Williams.

In Williams v. State, 737 N.E.2d 734 (Ind.2000), our supreme court granted Williams' petition to transfer from a court of appeals opinion affirming the post-conviction court's denial of his petition for post-conviction relief. Williams had appealed his conviction claiming that the trial court committed fundamental error by not correctly instructing the jury regarding the elements of attempted murder. His conviction was affirmed by a panel of this court. The supreme court denied transfer in the matter, bringing his direct appeal to an end. Williams then filed a petition for post-conviction relief citing fundamental error in the attempted murder instruction. Williams noted two supreme court decisions finding fundamental error in identical instructions. The post-conviction court denied Williams' petition for post-conviction relief on the basis that this court's ruling on the issue in Williams' direct appeal made the issue foreclosed by res judicata. A panel of this court affirmed the post-conviction court's denial of Williams' petition for post-conviction relief.

On transfer, the supreme court held that the "issue has been argued and decided adverse[ly] to Williams (albeit wrongly) such that it is res judicata." Id. at 739. However, it was unlikely that Williams, who was convicted of attempted murder as an accomplice, could have received a fair trial. The jury was never instructed regarding the specific intent element of the crime charged. This fundamental error on the part of the Williams trial court required reversal of the decision by the post-conviction court to deny Williams' petition.

Even though we believe that this court's direct appeal opinion in the present case appears to be at odds with Williams, the issue remains foreclosed by res judicata. Petitioner did not suffer the same kind of harm as that suffered by Williams.

At Petitioner's trial, the victim testified and was cross-examined about the fact that she was able to look at the man who walked up the street and climbed into the backseat of her cab. The victim testified that she looked at him through the rear view mirror where she clearly saw his face. She testified that she was wearing her glasses when she saw him. She further testified that she observed her attacker when he forced her out of her cab at gunpoint. Her assailant stated that he couldn't allow her to live because he believed that she had seen his face. Trial Tr. 368. The victim positively identified Petitioner in court as her attacker. Trial Tr. 373. The victim also testified that her attacker wore dark gray sweatpants, and that he placed her jewelry in one of his socks.

Dwight Brownlee, a...