Smith v. State

• Decision Date: 16 December 1987
• Docket Number: No. 49S00-8610-PC918,49S00-8610-PC918
• Citation: 516 N.E.2d 1055
• Parties: Tommie J. SMITH, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
• Court: Indiana Supreme Court

Page 1055

516 N.E.2d 1055

Tommie J. SMITH, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).

No. 49S00-8610-PC918.

Supreme Court of Indiana.

Dec. 16, 1987.

F. Thomas Schornhorst, Sp. Deputy Public Defender, Bloomington, for appellant.

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

PIVARNIK, Justice.

Tommie J. Smith appeals from the denial of his Amended Petition for Post-Conviction Relief. Smith was convicted, as was his co-defendant, Gregory Resnover, of murder and conspiracy to commit murder in the shooting death of Indianapolis policeman Jack Ohrberg. On the murder charge, Smith and Resnover were both sentenced to death.

The two men pursued separate appeals. Resnover's conviction and sentence were upheld by this Court in 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. Resnover pursued a petition for post-conviction relief, which was denied, and an appeal therefrom, which affirmed the denial. Resnover v. State (1987), Ind., 507 N.E.2d 1382.

Smith's convictions and sentences were also affirmed in his direct appeal. Smith v. State (1984), Ind., 465 N.E.2d 1105, reh. denied. Smith pursued a petition for post-conviction relief, which was denied. He now appeals that denial, raising the following issues for our review:

1. effective assistance of trial and appellate counsel 2. alleged violation of the right to confrontation;

3. sufficiency of the evidence to support the murder conviction;

4. sufficiency of the evidence to support the conspiracy conviction;

5. alleged prejudice resulting from references to Smith's decision to absent himself from the penalty hearing;

6. propriety of the State's closing arguments;

7. alleged failure to find a requisite aggravating circumstance;

8. propriety of vesting the prosecutor with discretion to pursue a death penalty charge.

A post-conviction action under Ind.R.P.C. 1 is a special quasi-civil remedy whereby a party can present an error which, for various reasons, was not available or known at the time of the original trial or appeal. Mato v. State (1985), Ind., 478 N.E.2d 57, 60. As such, the petitioner in a post-conviction proceeding bears the burden to prove any grounds for relief by a preponderance of the evidence. The judge who presides over the post-conviction hearing possesses exclusive authority to weigh the evidence and determine the credibility of the witnesses. The reviewing court will therefore not set aside the trial court's ruling on a post-conviction petition unless the evidence is without conflict and leads solely to a result different from that reached by the trial court. Id.

The evidence adduced at trial showed that at approximately 3:00 a.m. on December 11, 1980, Indianapolis Police Sergeant Jack Ohrberg met Sergeant Lewis J. Christ to serve an arrest warrant on individuals believed to be at 3544 North Oxford Street in Indianapolis. Ohrberg was in street clothing. Ohrberg and Christ were joined by four officers before arriving at the duplex at approximately 5:30 a.m. With Officers Schnieder and Harvey standing watch in the rear, Ohrberg, Christ, and Officers Ferguson and Foreman proceeded to the porch and front door. Ohrberg knocked loudly several times and identified himself as a police officer. Receiving no response, Ohrberg and Ferguson went to the adjacent half of the duplex, and learned from the tenant that she had heard movement in the adjoining half earlier in the night.

Ohrberg returned and again pounded on the front door, announcing himself as a police officer. When no response or movement was heard from within, Ohrberg assumed a crouched position and started to use his right shoulder to batter the door which, after a few hits, began to open. Ohrberg continued to hit the door. His body was partially inside the residence. Foreman and Christ saw furniture blocking the door. Foreman saw a burst of muzzle flash from inside and heard two or three shots in quick succession, then a pause for two seconds and then another rapid burst of fire. The simultaneous muzzle blasts came from two separate locations approximately eight to ten feet apart. Christ also heard the shots from inside the residence. Ferguson's testimony paralleled that of Foreman and Christ.

Ohrberg fired his gun into the house. Ohrberg then stepped back and to the left (south) on the porch, telling the other officers he had been shot. Ohrberg sank to his knees and collapsed on the porch. He lay at an angle to the doorway, head toward the house and feet toward the street. Foreman recalled Ohrberg had fallen forward and the majority of his body was at a 45 degree angle to the house or the street, with his head up very close to the window and his body extending outward, his feet out by the front end of the porch. At the post-conviction hearing Christ said Ohrberg fell to the south of the doorway with his head to the southwest on his stomach or his left side. His head was under the window to the south of the doorway.

Christ was standing to the right (north) of Ohrberg when Ohrberg was shot. As Ohrberg fell, Christ left the porch and retreated to the north. Taking cover, Christ saw a person with an "afro" and a rifle emerge from the doorway onto the porch and fire at least two additional shots toward Ohrberg. Shots were also being fired from within the residence. Christ fired two shots at the figure in the doorway and the man retreated inside. Ferguson was to Ohrberg's left (south) when Ohrberg was shot. Ferguson retreated to the south edge of the porch. He also saw the person in the doorway, holding a rifle in a "hip position" while standing over Ohrberg and fire his rifle right and left. He did not observe shots striking Ohrberg. Ferguson testified he could see the muzzle flash as the rifle was fired. Ferguson fired at the gunman and then ran around the corner of the house where gunfire continued to be directed at him.

Soon Gregory Resnover called to Christ that he wanted to talk and that Smith had been wounded. Negotiations proceeded, and after a few minutes, Gregory and Earl Resnover tossed weapons onto the porch and surrendered. Earl Resnover's billfold contained Ohrberg's business card. Smith was found on the living room floor. Next to Smith was a rifle and a damaged ammunition clip with a bullet hole piercing the clip from front to back. Ohrberg died of three gunshot wounds. Fragments of one bullet recovered at autopsy showed it was fired from the rifle found next to Smith.

A neighbor in the adjoining duplex said that before the shooting started she heard someone shout that it was the police and heard noise which may have been the chair being moved to barricade the door. This Court found that the facts adduced at trial show that the men inside 3544 North Oxford knew that the men at their door were police officers when they commenced firing on them. Further, Earl and Gregory Resnover had previously met Ohrberg who told them that his police investigation would likely involve them. Ohrberg's superior testified that Ohrberg was acting in the course of his duty as a police officer.

I

Smith claims he did not receive effective assistance of counsel at trial. The issues raised here are res judicata because this Court found on direct appeal that Smith did not receive inadequate representation. Smith, 465 N.E.2d at 1117-20. In a lengthy discussion, this Court concluded "the representation of counsel here was professional and more than adequate. Defendant was well prepared, well aware of all the facts of the case, acquired discovery, cross-examined witnesses, and vigorously tried the lawsuit." Smith, 465 N.E.2d at 1120.

Smith further claims he was denied effective assistance of counsel on direct appeal, and claims he is entitled to a new appeal de novo. The effectiveness of appellate counsel's representation is judged using the same standard as is applied to trial counsel. Mato, 478 N.E.2d at 62. To show ineffective counsel, Smith must first overcome a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, and show that his attorney's assistance was not reasonably effective. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied (1984), 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864; Lawrence v. State (1984), Ind., 464 N.E.2d 1291, 1294. Second, Smith must show he was prejudiced. He must show that but for counsel's unprofessional errors, the result of the proceedings would have been different. Id. The post-conviction court concluded counsel was not ineffective and there was a fair consideration of the issues on appeal.

Smith retained Stephen Wolfe to appeal his convictions and death sentence. Smith's case was the first criminal appeal Wolfe handled as a lawyer. Smith notes the inexperience of his appellate counsel. However, he fails to demonstrate that such inexperience was detrimental to the result, except to imply that this inexperience may have contributed to counsel's reluctance to omit issues. Isolated poor strategy, inexperience, or bad tactics do not necessarily constitute ineffective assistance. Ingram v. State (1987), Ind., 508 N.E.2d 805, 808; Van Evey v. State (1986), Ind., 499 N.E.2d 245, 247.

Smith claims the 796-page brief filed on direct appeal is prima facie sufficient to overcome the presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Smith attacks the length of his appellate brief, the large number of issues raised, and the election of Wolfe to summarize each witness's testimony in the Statement of Facts. The criticisms raised are stylistic questions with no demonstration of harm to Smith as a result. As the brief sufficiently enabled this Court to reach the issues, it will not support this claim of ineffective assistance. See Ingram, 508 N.E.2d at 808. Smith does not...