Slaton v. State

• Citation: 510 N.E.2d 1343
• Decision Date: 28 July 1987
• Docket Number: No. 185S6,185S6
• Parties: Nawatha SLATON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Supreme Court of Indiana

Page 1343

510 N.E.2d 1343

Nawatha SLATON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 185S6.

Supreme Court of Indiana.

July 28, 1987.

Terry A. White, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden Deputy Atty. Gen., Indianapolis, for appellee.

DICKSON, Justice.

Defendant-appellant, Nawatha Slaton, appeals his convictions for conversion, a class A misdemeanor (Ind. Code Sec. 35-43-4-3), and two counts of attempted burglary, class B felonies (Ind. Code Sec. 35-41-5-1 and Sec. 35-43-2-1). Defendant raises the following issues for our review: 1) refusal to grant a new trial; 2) admissibility of in-court identification of defendant; 3) admissibility of evidence seized in search incident to arrest; 4) sufficiency of evidence; and, 5) reasonableness of the sentence. We affirm.

At approximately 5:00 a.m. on April 14, 1984, the victim was awakened by noises at the front door of her apartment. She testified that the noises sounded like one of the three locks on her door was being turned by a key from the outside. Peering through the glass in the door, the victim observed the defendant with "something on his hands." The defendant walked off the screened porch, walked to the victim's garage area, rummaged through the victim's car, and then walked back past the porch again. The victim notified the police. Officer John Haller and his canine unit were dispatched to the scene and tracked the defendant for a short distance before losing the trail on a nearby side street. The victim discovered a small hole in the screened-in porch near the screen door and a bent coat hanger lying on the porch. She also discovered an open basement window and evidence that someone had entered her car. After the police left, the victim discovered that her key chain holding her apartment key and car keys was missing and remembered leaving the apartment key in the lock outside the front door the night before. She notified police and then had a locksmith change locks on her apartment doors and car.

In the early morning hours of April 18, the victim was again awakened by what she described as "the jingling of keys, as they hit a surface." She immediately called police. Officer Allen Byers responded to the call within approximately one minute and observed a large black man at the back of the victim's residence. The suspect appeared to spot the officer and flee. Officer Haller and his canine unit also responded to the call and drove immediately to the area where he had lost track of the burglary suspect four days earlier. Officer Haller spotted the defendant, observed a knife in defendant's hand and ordered the defendant to halt and drop the knife. Defendant dropped the knife but continued to flee. Haller and his dog pursued and eventually apprehended the defendant.

When apprehended, defendant had a black nylon sock over one of his hands. Officer Haller discovered another sock on the ground nearby. Upon searching defendant, Haller discovered a knife sheath and the keys which were subsequently identified as belonging to the victim.

Issue 1

Defendant contends that a new trial is warranted due to the ineffective assistance of defense counsel or, alternatively, the existence of newly discovered material evidence.

Defendant cites two examples in support of his contention that he received ineffective assistance of counsel. The first involves a possible defense witness, Laquittia Dillard, who defense counsel failed to locate, interview or subpoena to testify on defendant's behalf. Defendant also contends that his trial counsel advised the sole defense witness to testify vaguely with respect to defendant's whereabouts at the time the first burglary attempt occurred.

Reversal for ineffective assistance of counsel is appropriate in cases where a defendant shows both (a) deficient performance by counsel, and (b) resulting prejudice from errors of counsel so serious as to deprive the defendant of a trial whose result is reliable. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. A claim of ineffective assistance must identify the claimed errors of counsel, so that the court may determine whether, in light of all circumstances, the counsel's actions were outside the range of professionally competent assistance. The proper measure of attorney performance is reasonableness under prevailing professional norms. It shall be strongly presumed that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Judicial scrutiny of counsel's performance is highly deferential and should not be exercised through the distortions of hindsight. Isolated poor strategy, inexperience, or bad tactics do not necessarily amount to ineffectiveness of counsel. Strickland, supra; Burr v. State (1986), Ind., 492 N.E.2d 306; Price v. State (1985), Ind., 482 N.E.2d 719; Jackson v. State (1985), Ind., 483 N.E.2d 1374; Seaton v. State (1985), Ind., 478 N.E.2d 51.

At a post-trial hearing on defendant's motion to correct errors, Laquittia Dillard testified that during the course of an evening in either February or March, 1984, she watched the defendant perform sketch work at a local nightclub, Funky's II, and observed an unidentified white woman give a set of keys to the defendant. Dillard identified the victim's keys in a photograph as the same keys given to the defendant. Dillard initially revealed the information regarding the keys to one Sandra Johnson when Dillard attempted to employ Johnson to perform a psychic reading for her. Johnson was a friend of the defendant and relayed this information to another of defendant's friends, one Martha Brownlie. Dillard testified that Brownlie contacted her with regard to testifying on defendant's behalf, but Dillard declined to testify voluntarily because of pressure from her husband.

Saundra Dial and Martha Brownlie both testified at the hearing that they relayed Dillard's information, along with Dillard's address and phone number, to defendant's attorney. Brownlie further testified that when she asked the attorney to subpoena Dillard, he responded, "I don't like to do that sort of thing." Dial and Brownlie allegedly contacted the attorney again the night before the trial and told him Dillard was available to be interviewed over the phone, yet he declined to do so. Brownlie further testified that on the day of the trial, defendant's attorney told her that it was her (Brownlie's) responsibility to get Dillard to the trial.

Defendant's attorney testified at the hearing that he initially became involved in the case upon the request of defendant's friends, Sandra Johnson, Saundra Dial and Marty Brownlie, a group which he referred to as the "Slaton Defense Committee." Defendant authorized his attorney to reveal confidential communications to them and the "Committee" was authorized to "act somewhat as agents for him (defendant)." The attorney testified that he was unaware of how to contact Dillard, and that he repeatedly asked Brownlie and Dial to have Dillard contact him. Brownlie and Dial assured him that they would bring Dillard in to interview, yet Dillard made no contact with the attorney prior to trial. The attorney decided not to subpoena Dillard because of her apparent refusal to come into his office voluntarily. The attorney was also led to believe that Dillard had previously been convicted of impeachable offenses. Moreover, there was some indication that Dillard's knowledge concerning the incident was derived from her psychic powers. Finally, the attorney became convinced that Dillard's testimony would have been merely cumulative of Saundra Dial's, and that Dial made a superior witness.

Although we do not view the attorney's failure to even interview Dillard as a model of diligence, the circumstances lead us to conclude that it did not constitute ineffective assistance of counsel. Defense counsel was aware of Dillard's prior felony convictions and realized the potentially negative impact they could have on her credibility. Moreover, Saundra Dial, the only witness to testify in defendant's case-in-chief, testified that she was with defendant at Funky's II the evening prior to the first burglary attempt. She testified that a woman resembling the victim requested the defendant to come to her home later that same night to do some sketch work. The woman then allegedly gave the defendant a set of keys. Dial identified the victim's keys as those which were given to the defendant. In light of Dial's testimony, despite the discrepancy in dates, it was reasonable for defense counsel to view Dillard's testimony as merely cumulative. His decision not to subpoena Dillard was a matter of trial strategy and discretionary judgment. Moreover, in light of the overwhelming evidence linking defendant to the crimes, we are unpersuaded that counsel's failure to procure Dillard's testimony could have reasonably been expected to influence the outcome of the trial.

In addition to her trial testimony concerning the keys, Saundra Dial testified that she and the defendant left Funky's II at approximately 3:00 a.m. She was unable to recall where they went or what time they eventually arrived at defendant's home. She stated on re-direct examination that it was possible that defendant left his residence sometime during the early morning hours.

At the post-trial hearing, Dial testified that she had advised defendant's attorney that she had specific recollection that defendant was with her when the first burglary attempt allegedly occurred. She testified that defendant's attorney instructed her to be deliberately vague on the issue because the jury would not believe that she could have such specific recollection. This allegation is in direct conflict with the testimony of defendant's attorney who, when confronted with the allegation at the post-trial hearing, responded:

No, I tried to press upon...