Smith v. State

• Decision Date: 24 August 1987
• Docket Number: No. 1285S535,1285S535
• Citation: 511 N.E.2d 1042
• Court: Indiana Supreme Court
• Parties: John A. SMITH, Appellant, v. STATE of Indiana, Appellee.

Page 1042

511 N.E.2d 1042

John A. SMITH, Appellant, v. STATE of Indiana, Appellee.

No. 1285S535.

Supreme Court of Indiana.

Aug. 24, 1987.

Susan K. Carpenter, Public Defender, Vickie Yaser, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is an appeal following denial of a petition for post-conviction relief. Appellant's murder conviction was upheld on direct appeal in Smith v. State (1981), 275 Ind. 642, 419 N.E.2d 743.

There are two issues presented for review: (1) whether appellant's trial attorney provided ineffective assistance of counsel; and (2) whether newly discovered evidence requires a new trial.

Testimony in the trial court revealed that appellant was acquainted with Marvin Foster and Kalvyn Collins and was often seen in their company. Foster and Collins lived together in a basement apartment of a house leased by Collins's mother. Collins's two year old daughter also resided with them.

On August 18, 1978, Foster, Collins and her daughter were all asleep in one bed when Collins was awakened by a scream and observed Foster and appellant struggling. Foster collapsed, appellant fled and Collins ran upstairs to her mother's bedroom. By the time police arrived, Foster was dead as a result of numerous stab wounds.

In support of his claim that his trial counsel was ineffective, appellant presents the following:

(A) counsel's failure to investigate and/or utilize police and hospital reports;

(B) counsel's failure to investigate and/or present evidence of Collins's negative reputation for truth and veracity;

(C) counsel's failure to investigate and/or present alibi evidence;

(D) counsel's failure to object to portions of Collins's testimony concerning prior misconduct by appellant;

(E) counsel's failure to utilize prior statements made by Collins to impeach Collins's testimony;

(F) counsel's failure to object on the grounds of lack of foundation to Collins's testimony relating a threat by appellant against Foster;

(G) counsel's failure to utilize prior statements of police officers involved to impeach their credibility;

(H) counsel's failure to object to Collins's mother's testimony concerning prior misconduct by appellant; and

(I) counsel's failure to object to hearsay testimony.

Trial counsel testified at the post-conviction hearing and generally could shed no light on the allegations of ineffectiveness raised by appellant. Even though he was provided with the trial transcript in order to refresh his recollection prior to the post-conviction hearing, he testified he had only been able to get about half way through the 350 total pages and had no specific recollection of the steps he took in preparing appellant's defense or in formulating his trial strategy.

When a claim of ineffective assistance of counsel is raised, we look to the following:

"A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the convictions or death sentence resulted from a breakdown in the adversary process that renders the result unreliable."

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. In determining whether prejudice resulted from counsel's errors, the question to be answered is whether there is a "reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. at 2068.

After reviewing each alleged error or omission of appellant's trial counsel, we find that counsel's performance was deficient that the deficient performance prejudiced appellant and that absent counsel's errors, a reasonable probability exists that a different result may have been obtained.

(A) The only direct evidence connecting appellant with the death of Marvin Foster was the testimony of Kalvyn Collins. At trial, defense counsel questioned her concerning any injuries Foster had sustained in the several months prior to his death. Collins testified that she would have known if Foster had been injured during those months and that he had not been injured or treated at a hospital for an injury shortly before his death. Counsel for appellant also presented Gerald Humphrey, appellant's sister's boyfriend, who testified that one time Foster had shown him some cuts and told him Collins had cut him. Collins testified that early in their relationship she had thrown a dish at Foster and may have cut him. At his post-conviction hearing, appellant introduced a police report and a hospital report from July 1, 1978, approximately six weeks prior to Foster's death. The police report indicated that Foster and Collins were arrested on that date for public intoxication and that Foster was transported to the hospital for treatment of injuries inflicted by Collins. The hospital report reflected that on that date Foster was treated for "multiple superficial lacerations all over body from knife wounds" and that Foster received twelve stitches.

Counsel for appellant admitted at the post-conviction hearing that he was aware that Collins had previously stabbed Foster. When questioned whether he had subpoenaed any medical reports concerning the incident, he stated that he did not recall but that if those documents existed he would certainly have used them. Gerald Humphrey's testimony did not include when he had observed the cuts on Foster, it was only established that it was prior to his death. His testimony did not serve to make the jury aware that six weeks prior to Foster's death Collins had inflicted numerous lacerations upon Foster with a knife, requiring treatment and stitches at a hospital. Collins was the only eyewitness to Foster's death and her credibility would be significantly affected by the fact that she had recently stabbed Foster and her denial under oath of that fact. The police and hospital records were available eight years later, as evidenced by post-conviction counsel's use of those records. They would certainly have been available at the time of trial, had their existence been investigated. The police and hospital reports put Collins's credibility in serious doubt and counsel's failure to present evidence of this incident prejudiced the defense.

(B) At the post-conviction hearing, Collins's landlord at the time of the murder testified that Collins's reputation for truth and veracity was "not very good" and that had he been subpoenaed, he would have so testified at trial. Trial counsel did not subpoena the witness post-conviction counsel located or present direct evidence that Collins had a negative reputation for truth and veracity. However, he did attempt to cast doubt on her credibility, albeit with persons related to appellant. Besides Humphrey's testimony that Collins had once cut Foster, Collins's denial of her sexual involvement with appellant was contradicted by two witnesses. The failure to present a witness to directly aver Collins had a poor reputation for truth and veracity was not, standing alone, deficient.

(C) Appellant testified at his post-conviction hearing that he only conferred with his trial attorney twice prior to trial and that he provided counsel with the names and addresses of alibi witnesses but that none were utilized at trial. Trial counsel testified he did not recall if he contacted any alibi witnesses. A William Patterson testified at the post-conviction hearing that he drove appellant to the bus station where appellant boarded a bus for Chicago several hours prior to Foster's death. He further testified that Collins had confessed to him that she killed Foster. Patterson revealed that when someone he assumed to be Smith's attorney questioned him, he told him he knew nothing about Smith's case. He also admitted having a rather extensive criminal record.

The record of the proceedings does not reflect that a notice of alibi defense was ever filed in this case but appellant did testify at trial that he was elsewhere at the time of the crime. Appellant stated that individuals in Chicago would testify that he was in Chicago the night of the murder; however, those witnesses were not presented at the post-conviction hearing. Appellant's testimony that these witnesses were available is not sufficient to overcome his burden of persuasion that counsel was ineffective for failure to present the witnesses. As for the testimony of William Patterson, he testified he believed appellant's counsel attempted to talk with him but that he told counsel he knew nothing of Smith's case. Rather than show counsel was negligent, this testimony reflects he made an effort to corroborate appellant's version of his whereabouts.

(D) Collins was permitted to testify, without objection, to certain prior unrelated acts of misconduct committed by appellant. Specifically, she testified that a physical fight occurred between appellant and a woman named Lucille and also that appellant had previously broken into Collins's house and "messed with" her feet. While the fight between appellant and another woman was clearly unrelated to the present case, the prejudicial impact of the introduction of this event seems minimal at best. The incident where appellant purportedly broke into Collins's apartment and "messed with" her feet is much more relevant. It places appellant breaking in the apartment, at night, for...