Smith v. State

• Decision Date: 08 March 1993
• Docket Number: No. 49A05-9111-CR-385,49A05-9111-CR-385
• Parties: Dennis SMITH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 265

610 N.E.2d 265

Dennis SMITH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A05-9111-CR-385.

Court of Appeals of Indiana,

Fifth District.

March 8, 1993.

Rehearing Denied April 13, 1993.

James A. Gothard, Gothard & O'Connell, Lafayette, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Julie Zandstra Frazee, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

RUCKER, Judge.

Dennis Smith appeals his conviction for battery, a Class A misdemeanor raising five issues for our review which we consolidate and rephrase as follows:

1. Was Smith denied effective assistance of counsel?

2. Did the prosecutor engage in prosecutorial misconduct?

3. Did the trial court err in sentencing Smith?

We affirm in part and reverse in part. ¹

This is a case of domestic violence. The facts reveal in the evening hours of October 24, 1990, Smith and his wife Delores became engaged in a verbal altercation. The altercation escalated and Smith grabbed Delores by her neck and shook her violently. As Delores tried to leave the couple's apartment, Smith pulled her inside and began hitting her with his fists. Delores fell to the floor and assumed a fetal position to protect herself from her husband's attack. Smith continued to punch her in front of her children. A neighbor heard Delores' cry for help and Smith ended his attack. Delores sustained bruises on her legs, arms, jaw, and chin and also suffered a cracked tooth.

Smith was charged with battery as a Class A misdemeanor and after trial by jury was convicted of the offense. He was sentenced to one year incarceration with 255 days suspended. Smith was placed on probation for one year following his incarceration. Six months of Smith's probation were to be served under home detention.

Additional facts are discussed below where relevant. ²

I.

Smith first complains his conviction should be reversed because he received ineffective assistance of counsel. In support of his contention Smith lists numerous instances of his counsel's alleged acts of commission and omission.

In order to prevail on a claim of ineffective assistance of counsel Smith must show that 1) counsel's representation was deficient and 2) the deficient performance so prejudiced him as to deprive him of a fair trial. Steele v. State (1989), Ind., 536 N.E.2d 292 following Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Even if a defendant establishes that his attorney's acts or omissions were outside the wide range of competent professional assistance, he must also establish that but for counsel's errors, the result of the proceeding would have been different. Strickland, supra.

The alleged acts of commission of which Smith complains include, his counsel's failure to object to various questions the prosecutor posed to him during cross-examination, failure to object to comments made by the prosecutor during closing argument, failure to object to the trial court's sua sponte removal of a prospective juror, failure to object to the trial court's imposition of time limits for jury selection, failure to object to a State's witness' violation of an order for separation of witnesses, and failure to object to the trial court's imposition of an improper sentence.

In order to establish that counsel's failure to object amounts to ineffective assistance of counsel, an appellant must show that had the objection been made, it would have been sustained by the trial court. Grigsby v. State (1987), Ind., 503 N.E.2d 394. Other than citing cases outlining the general standard set forth in Strickland, Smith cites no authority supporting his position that had the various objections been made they would have been sustained. Smith has failed to carry his burden of demonstrating counsel's alleged acts of commission amount to deficient representation.

The alleged acts of omission of which Smith complains include, counsel's failure to introduce into evidence various documents, which, according to Smith, would have impeached the credibility of the State's complaining witness and failure to obtain an order directing the complaining witness to undergo a psychiatric evaluation. Smith also laments the decision of trial counsel to call a witness who testified, among other things, that she was really of "no assistance to either party." Record at 739. Smith's complaint here amounts to an attack on counsel's trial strategy. Deliberate choices by attorneys do not establish ineffective assistance of counsel even though such choices may be subject to criticism or the choices ultimately prove to be detrimental to the defendant. Cobbs v. State (1982), Ind., 434 N.E.2d 883. This court will not second guess counsel's trial tactics and strategy. We find no ineffective assistance here.

II.

Next, Smith contends the State engaged in acts of prosecutorial misconduct which deprived him of a fair trial. Specifically, Smith complains of questions posed to him by the prosecutor during cross examination and comments made by the prosecutor during closing argument.

In order to obtain reversal of a conviction due to prosecutorial misconduct, a defendant must show 1) the prosecutor's actions constituted misconduct by reference to established norms of professional conduct, and 2) that the ensuing prejudice placed him in a position of grave peril to which he should not have been subjected. Everroad v. State (1991), Ind., 571 N.E.2d 1240.

During cross examination the prosecutor questioned Smith on his knowledge of the penalties for battery as a Class A misdemeanor. The prosecutor pursued the questioning pointing out the one year maximum penalty and the $5,000.00 possible fine. According to Smith, the prosecutor's conduct placed him in grave peril.

We agree with Smith that the prosecutor's examination concerning the possible penalties for an offense was improper. The penalty prescribed by the legislature for a crime is irrelevant to jurors in the performance of their duty to assess guilt and they should be oblivious to the legislature's punishment scheme since judges rather than juries fix sentences. Burgess v. State (1983), Ind., 444 N.E.2d 1193. However, we do not agree Smith was placed in grave peril as a result. In determining whether a defendant has been subjected to "grave peril," the reviewing court looks not to the degree of impropriety involved, but at its probable persuasive effect on the jury. As the court observed in Everroad, supra:

This effect, in turn, is assessed not by whether its absence conclusively would lead to an acquittal; rather, reversal is required where the evidence is close and the trial court fails to alleviate the prejudicial effect.

Id. at 1244.

Here, the evidence concerning Smith's guilt was not close. While testifying on his own behalf Smith admitted striking Delores but claimed he did so only in self defense. Record at 681-83. Further, the trial court gave a final instruction advising the jury that the judge is solely responsible for assessing the penalty within a broad range of possibilities. Improper remarks do not warrant reversal when the trial court properly admonishes the jury and the defendant was not placed in grave peril. Williams v. State (1980), Ind.App., 408 N.E.2d 123. Smith has not shown that he was subjected to grave peril.

Also during cross examination, in an apparent attempt to bolster his self defense claim, Smith testified Delores had the capability of "taking down two or three men easily." Record at 697. In response the prosecutor replied "I think that's a physical impossibility Mr. Smith." Id. According to Smith this comment suggested to the jury the prosecutor possessed additional information and evidence outside of that which was presented to them. We disagree.

Although the prosecutor's remark was editorial in nature and should have been reserved for final argument, it was little more than a comment on that which the jury could observe for itself. The record reveals Smith is 5'11"' and weighs 180 pounds. The record is silent concerning Delores' height, but indicates she weighs 120 pounds. The prosecutor's comment did not constitute misconduct.

During closing argument the prosecutor implored the jury to convict Smith of battery, and remarked that Delores was telling the truth, that Smith was a liar, and that "he's trying to get away with it again." Record at 761. According to Smith, all of the remarks were prejudicial and the latter remark suggested to the jury the prosecutor was in possession of additional information not presented to the jury.

We first note the prosecutor's comments of which Smith complains were made during rebuttal. During closing argument, counsel for Smith remarked "Delores is not a credible witness" and later remarked "I think the credible witness is Dennis Smith." Record at 697. The prosecutor is entitled to respond to allegations and inferences made by defense counsel during the closing argument. McBroom v. State (1988), Ind., 530 N.E.2d 725. In this case Smith's defense counsel opened the door to the State's rebuttal.

Next, we do not agree that the prosecutor's remark that Smith is "trying to get away with it again" implies the prosecutor was making a personal comment on Smith's guilt or innocence. Record at 761. Rather, the remark was an acceptable comment on the evidence. The record reveals the incident giving rise to the instant case was not the first time Smith had exhibited violent outbursts. On a prior occasion he had tried to knock Delores off a bed. Record at 566. On another occasion he had thrown a wallet through a bedroom window and had smashed a wooden chair "into little pieces." Record at 568. The record does not reveal Delores pursued any criminal action concerning Smith's prior violent outbursts. In effect, he "got away with it." The prosecutor's comment that Smith was "trying to get away with it again" was not improper.

Smith has not demonstrated he was subjected to grave peril or denied a...