Stanley v. State, 783S264

• Decision Date: 09 July 1985
• Docket Number: No. 783S264,783S264
• Citation: 479 N.E.2d 1315
• Parties: Robert STANLEY, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
• Court: Indiana Supreme Court

Page 1315

479 N.E.2d 1315

Robert STANLEY, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).

No. 783S264.

Supreme Court of Indiana.

July 9, 1985.

Susan K. Carpenter, Public Defender, Frances Watson, Dep. Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Dep. Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

The petitioner-appellant, Robert Stanley, is before this Court appealing from the denial of his petition for post-conviction relief. He was charged initially with arson, a class B felony, Ind.Code Sec. 35-43-1-1 (Burns 1985 Repl.) and burglary of a dwelling, a class B felony, Ind.Code Sec. 35-43-2-1 (Burns 1985 Repl.). Appellant was found guilty by a jury and sentenced to two concurrent twenty-year terms. His convictions were affirmed on direct appeal in Stanley v. State (1980), 273 Ind. 13, 401 N.E.2d 689.

Appellant raises three issues in this appeal from denial of post-conviction relief: (1) whether he had effective assistance of counsel; (2) whether the lower court erred by failing to grant a new trial based upon newly discovered evidence; (3) whether a new trial should be granted appellant based upon the nondisclosure of an alleged pre-testimony agreement between the State and appellant's accomplice.

On February 16, 1982, the following pertinent findings were made by the post-conviction court: (1) since appellant failed to allege specific conduct or misconduct of his trial counsel, appellant failed to establish by a preponderance of the evidence his claims of ineffective assistance of counsel; (2) the newspaper article produced as evidence does not exculpate appellant from the crimes for which he was convicted; (3) appellant failed to establish by a preponderance of the evidence the existence of a pre-testimony agreement between the State and appellant's accomplice which should have been disclosed to the jury; and (4) the post-trial affidavit of a State's witness is essentially conjecture on the affiant's part, unsupported by any demonstrable facts set forth in the affidavit, and does not establish that appellant was not involved in the offenses for which he was convicted.

I.

Appellant claims he did not have effective assistance of counsel at his trial. To succeed on an ineffective assistance of counsel claim, appellant must satisfy the Strickland performance-prejudice, standard. Strickland v. Washington (1984), --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674. The performance component requires appellant to show that counsel's performance was deficient. The attorney performance standard is reasonably effective assistance which is objectively measured by the prevailing professional norms. To satisfy this criterion, appellant must overcome the strong presumption that counsel's conduct lies within the wide range of reasonable professional assistance. The prejudice component requires appellant to show that counsel's unreasonable performance not only prejudiced the defense, but also that this prejudice undermined the reliability and fairness of the proceeding.

Appellant's claim that he did not have effective assistance of counsel at his trial is predicated on two theories: one, trial counsel failed to impeach a crucial state witness, and, two, trial counsel was unprepared for trial.

Appellant first contends that trial counsel Graves failed to impeach accomplice Denny's in-court testimony because he did not call Virgil Bullard as an impeaching witness.

Denny testified at appellant's trial that he, appellant, and co-defendant McGee went to the home of the victim, Michael Spence, removed articles belonging to Spence, and then appellant set fire to Spence's home on August 31, 1978. Appellant was apparently angry at Spence's mother, with whom he had been living, for throwing him out of her house. He indicated to Denny that burning her son's home was motivated by revenge. On cross-examination by trial counsel Graves, Denny admitted that he drank several times a week, had previously set other fires, and had received psychiatric treatment.

At appellant's post-conviction hearing Virgil Bullard testified that he had not been contacted to testify at appellant's trial about Denny's reputation for truthfulness in the community and that Denny once lied about Bullard telling Denny to set fire to some of Bullard's homes. Graves also testified at the post-conviction hearing that prior to trial he was aware that Denny's credibility was questionable, that he did not call any witnesses to refute Denny's testimony, and, based upon his personal knowledge of Bullard's involvement in a criminal action, Graves decided that Bullard's veracity as a witness was also questionable.

Since trial counsel exercised his prerogative to determine the detriments and benefits of witness testimony after due deliberation, his decision not to call Bullard as a witness was a reasonable trial tactic. Moreover, Graves did attack Denny's credibility by eliciting from Denny on cross-examination his admission regarding his alcohol consumption, prior acts of arson, and psychiatric treatment. Trial counsel's performance was not deficient on this basis.

Appellant also premises his argument of ineffective assistance of counsel on trial counsel's lack of preparation for trial. Appellant maintains that Graves failed to prepare adequately his alibi witnesses' testimony because these witnesses testified inconsistently at his trial. At the post-conviction hearing Graves testified that he had conversations with some of the alibi witnesses before trial but did have difficulty reaching a couple of these witnesses prior to the trial.

Denny testified at trial that he, appellant, and co-defendant McGee arrived at the Spence home at 8:30 to 8:45 p.m. on August 31, 1978, and...