State v. Moore

Decision Date23 April 1997
Docket NumberNo. 29S00-9008-PD-543,29S00-9008-PD-543
Citation678 N.E.2d 1258
CourtIndiana Supreme Court
PartiesSTATE of Indiana, Appellant-Respondent, v. Richard D. MOORE, Appellee-Petitioner.

Pamela Carter, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Office of Attorney General, Indianapolis, for Appellant.

Susan K. Carpenter, Public Defender of Indiana, Thomas C. Hinesley, Joanna Green, Office of the Public Defender, Indianapolis, for Appellee.

BOEHM, Justice.

The State of Indiana appeals from a grant of postconviction relief to petitioner Richard D. Moore. The postconviction court vacated Moore's 1980 guilty plea for three counts of murder, and also the accompanying death sentence, on the ground that Moore had been denied his Sixth Amendment right to effective assistance of counsel and also because his plea was not voluntary. The State appeals only the reversal of the conviction. We hold that Moore's counsel was not ineffective at the guilt stage and that the postconviction court therefore clearly erred in setting the conviction aside. We also hold that as a matter of law Moore's plea was not involuntarily given. Accordingly, we reinstate Moore's conviction for three counts of murder and remand for a new sentencing hearing.

Factual & Procedural Background

This case arose out of events that took place in Indianapolis on the night of November 6, 1979. Moore and his former wife, Rhonda Caldwell, had recently divorced. Moore went to her house that evening, where she was living with her parents. A domestic quarrel, beginning with a verbal clash, quickly led to violence. Before the night was out, Moore had shot and killed Caldwell, her father, and Indianapolis police officer Gerald F. Griffin, who had been called to the scene to investigate the dispute. Caldwell's mother was also shot but survived to give a statement used at the sentencing phase of Moore's prosecution. On November 7, 1979, the State charged Moore by information with the murder of Caldwell, her father, and Griffin, as well as with several counts of attempted murder and criminal confinement. The State also stated that it intended to seek the death penalty for Moore.

On August 25, 1980, the day his trial was scheduled to begin, Moore pleaded guilty without a plea agreement to three counts of murder. The State moved to dismiss the remaining charges four days later. On October 24, 1980, after a three-day sentencing hearing, the trial judge sentenced Moore to death. Moore's conviction and death sentence were affirmed on direct appeal. Moore v. State, 479 N.E.2d 1264 (Ind.1985). Moore petitioned for postconviction relief in 1986. On May 15, 1995, the postconviction court vacated the conviction and death sentence. In this appeal, the State challenges the decision to set aside the conviction but does not contest the reversal of the death sentence.

Standard of Review

As recently reiterated in State v. Van Cleave, 674 N.E.2d 1293 (Ind.1996), petition for reh'g filed, review of a judgment granting postconviction relief is governed by Indiana Trial Rule 52(A). In sum, as to factual determinations "[w]e reverse only upon a showing of clear error--that which leaves us with a definite and firm conviction that a mistake has been made." Id. (internal quotation marks omitted) (citing Spranger v. State, 650 N.E.2d 1117, 1119 (Ind.1995), reh'g denied ). As Spranger explained, "clear error" review requires the appellate court to assess whether "there is any way the trial court could have reached its decision." Spranger, 650 N.E.2d at 1120. In this review, we defer substantially to findings of fact but not to conclusions of law.

I. Ineffective Assistance of Counsel

To prevail on a claim of ineffective assistance of counsel, the defendant must show two things: (1) counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In adjudicating claims under the first prong of Strickland, it is presumed that counsel exercised reasonable professional judgment in making important decisions; accordingly, we scrutinize the handling of the case with great deference. Counsel's conduct is assessed based on facts known at the time and not through hindsight. And rather than focusing on isolated instances of poor tactics or strategy in the management of a case, the effectiveness of representation is determined based on the whole course of attorney conduct. Finally, although egregious errors may be grounds for reversal, we do not second-guess strategic decisions requiring reasonable professional judgment even if the strategy or tactic, in hindsight, did not best serve the defendant's interests. See, e.g., Butler v. State, 658 N.E.2d 72, 78-79 (Ind.1995); Spranger, 650 N.E.2d at 1121. For the second part of the Strickland test--the "prejudice" prong--Van Cleave recently clarified that to prevail on a claim of ineffective assistance of counsel in the guilty plea setting, the defendant must show not only a willingness to go to trial but for counsel's errors, but a reasonable probability that the result (a conviction) would have been different.

Here, the postconviction court made detailed findings on the reasonableness of Moore's counsel's performance at both the guilt and penalty stages, and pointed to several aspects of this assistance in setting the guilty plea aside. We accept these factual findings but ascribe different legal significance to them. Much of the allegedly unreasonable performance bore not on the guilt phase but on the outcome at sentencing, an issue not before us in this appeal. We conclude for the reasons elaborated below that counsel's conduct pertaining to the guilt phase, while not perfect, was within the range of reasonable competent assistance required by the Sixth Amendment.

A. Failure to request a second change of venue.

In finding that Moore's trial counsel had been constitutionally ineffective, the postconviction court largely relied on counsel's misunderstanding of the law of venue. The alleged murders in this case took place in Marion County where Moore was first charged with the crimes. Moore and the State stipulated to a change of venue to Hamilton County and the case was transferred there on January 10, 1980. Moore's original trial counsel withdrew on March 13, 1980. Wilmer Goering, a Hamilton County lawyer then in private practice, was appointed to represent Moore. Goering wrongly believed that the case had to be tried in Hamilton County. In fact, as the postconviction court concluded, Goering could have sought a second change of venue upon a proper showing of community bias and prejudice against Moore. However, no such motion was ever filed.

In formulating a defense strategy, Goering was acutely aware of the racial overtones of the case: Hamilton County in 1980 had, and still today has, few minority residents. Moore is African-American and the three victims were Caucasian. Goering testified in the postconviction proceedings that the "most important factor" influencing his decision to recommend a guilty plea was his "evaluation that a [Hamilton County] jury hearing these facts with a black defendant, white victims, and a dead police officer would recommend the death penalty." In Indiana, if a death penalty case is tried to a jury, the jury also makes a non-binding recommendation to the judge as to the proper sentence. IND.CODE § 35-50-2-9(d)-(f) (1993 & Supp.1996). Thus, Goering reasoned, the better strategy was to plead guilty and forego a jury recommendation expected to be adverse.

A defendant is entitled to a change of venue upon a showing that jurors are unable to disregard preconceived notions of guilt and render a verdict based on the evidence. See, e.g., Bradley v. State, 649 N.E.2d 100, 108 (Ind.1995), reh'g denied. Disposing of a motion for a change is within the sound discretion of the trial court. Linthicum v. State, 511 N.E.2d 1026, 1031 (Ind.1987). The decision to seek a change of venue is generally a matter of trial strategy that we will not second-guess on collateral attack. Wood v. State, 512 N.E.2d 1094, 1098 (Ind.1987); Allen v. State, 498 N.E.2d 1214, 1216-17 (Ind.1986); Bieghler v. State, 481 N.E.2d 78, 97 (Ind.1985). In evaluating claims of ineffective assistance for failure to seek a change of venue, our decisions have found counsel's handling of a case competent where there was insufficient evidence to conclude the defendant could not have received a fair trial in the county in which the case was tried. Nearly all of these decisions involved alleged prejudice due to negative pretrial publicity. See, e.g., Thompson v. State, 671 N.E.2d 1165, 1169 (Ind.1996) (no showing of prejudicial pretrial publicity such that counsel should have sought change of venue); Vaughn v. State, 559 N.E.2d 610, 615 (Ind.1990) (failure to explain change of venue option to defendant not ineffective where no showing that jury was not impartial); Darnell v. State, 435 N.E.2d 250, 255-56 (Ind.1982) (insufficient showing of prejudicial pretrial publicity such that fair trial right was jeopardized); Beard v. State, 428 N.E.2d 772, 774 (Ind.1981) (same); Lindley v. State, 426 N.E.2d 398, 401 (Ind.1981) (same); Kidwell v. State, 260 Ind. 303, 307-08, 295 N.E.2d 362, 364-65 (1973) (failure to seek change of venue not neglect where newspapers did not misrepresent the facts and some of the publicity benefitted the defendant).

Stated another way, the reasonableness of counsel's decision not to seek a change of venue is assessed based on whether there was such prejudice against the defendant that there is a reasonable probability the motion would have been granted by a trial judge acting according to law. Even where this showing is made, reasonable...

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