Stroud v. State

• Citation: 587 N.E.2d 1335
• Decision Date: 05 March 1992
• Docket Number: No. 02A05-9106-PC-199,02A05-9106-PC-199
• Parties: Mitchell STROUD, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

Page 1335

587 N.E.2d 1335

Mitchell STROUD, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 02A05-9106-PC-199.

Court of Appeals of Indiana Fifth District.

March 5, 1992.

Transfer Denied April 23, 1992.

Susan K. Carpenter, Public Defender, Margaret Hills, Sp. Asst., Frankfort, Ky., for appellant-petitioner.

Linley E. Pearson, Atty. Gen., Preston W. Black, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-respondent.

SHARPNACK, Judge.

Mitchell Stroud appeals the court's denial of his petition for post-conviction relief (P-CR). We affirm.

Stroud presents two issues for our review, which we restate as:

(1) Whether Stroud was denied effective assistance of counsel.

(2) Whether the trial court erred by permitting into evidence testimony regarding the show-up identification of Stroud.

The facts most favorable to the judgment are set out in Stroud v. State (1979), 272 Ind. 12, 395 N.E.2d 770 as follows:

On April 3, 1978, Paul Chapman and the decedent Daniel Norris were hitchhiking in the city of Fort Wayne when they were picked up by Greg Brownlow and appellant Mitchell Stroud. Brownlow was driving the car. After they had travelled a short distance, Brownlow pulled the car into a darkened parking lot. Stroud pointed a gun at Chapman and Norris, and Brownlow asked them how much money they had. They were ordered to raise their hands, and while Brownlow held the gun on the two, Stroud searched them, removing their wallets and other belongings from them. Brownlow then handed the pistol back to Stroud, who kept it trained on Chapman and the decedent Norris. They were then told to close their eyes. Norris refused to shut his eyes, and several more words were exchanged. Norris then grabbed for the gun Stroud was holding. As the two struggled for control of the gun, two shots were fired. The first struck appellant Stroud on the arm. The second shot struck Norris in the head, and he died from this wound a short time later. The struggle over the gun and the shootings took place very quickly.

The record reveals that immediately after the shooting Chapman left the car and ran to a bar about eleven blocks away to summon help. At approximately 1:30 a.m., police officers arrived on the scene. After the officers interviewed Chapman, they broadcast a description of the two assailants to all squad cars. Meanwhile, sometime around 2:00 a.m., Stroud and Brownlow visited the home of a friend. Stroud had a gunshot wound to his arm, which the friend wrapped in a towel. Afterwards, the friend drove Stroud to a hospital.

As Stroud was waiting in the emergency room of the hospital, Officer Figel entered. Approximately thirty minutes earlier, Figel had heard over his radio that someone matching Stroud's description was one of two suspects recently involved in a robbery-shooting. Figel approached Stroud and questioned him about his wound. Becoming suspicious, Figel radioed for assistance and requested that the detectives bring Chapman to the hospital to possibly identify Stroud as one of his attackers.

Stroud was in the treatment room when the police arrived at the hospital with Chapman. While the police were conversing with Stroud's friend, Stroud was wheeled out into the waiting room. Chapman approached Stroud and asked him to lower his hands from his face so that he could see him. When he did, Chapman positively identified Stroud as one of his assailants and Stroud was arrested by Officer Figel. ¹

Later that same day, Stroud gave two statements regarding the incident. Around 10:30 a.m., Stroud waived his Miranda rights and stated that he had been shot while jogging. Around 1:30 p.m., Stroud again waived his Miranda rights and made a video statement that he had indeed participated in the robbery and shooting in question, but that the shooting had been accidental.

Stroud was subsequently charged with felony murder. During his jury trial, Stroud testified on his own behalf and admitted that he had participated in the robbery and shooting of April 4. However, Stroud again claimed that the shooting was accidental. The jury found Stroud guilty as charged, Stroud appealed the jury's verdict, and, in Stroud v. State (1979), 272 Ind. 12, 395 N.E.2d 770, the supreme court unanimously affirmed his conviction.

We begin our analysis by stating that, as the petitioner, Stroud bears the burden of proof in a petition for post-conviction relief. Popplewell v. State (1981), Ind., 428 N.E.2d 15, 16. The post-conviction court is the trier of fact and the sole judge of the weight and credibility of the evidence. Id. Where the petitioner appeals the denial of a P-CR petition he appeals from a negative judgment. In such cases, it is only where the evidence is without conflict and leads to but one conclusion, and the court below has reached the opposite conclusion, that we will disturb the decision of the post-conviction court as being contrary to law. Id.

First, we address the issue of whether Stroud was denied effective assistance of counsel. Stroud argues that he received ineffective assistance of counsel for three reasons: (1) counsel failed to file a motion to suppress or otherwise object to the identification procedure used by the police in order to obtain a positive identification of Stroud shortly after the crime; (2) counsel unnecessarily brought to the jury's attention the fact that as a juvenile Stroud had had prior contacts with the criminal justice system; and, (3) counsel pursued the theory that Stroud's shooting of Daniel Norris was accidental.

In order for Stroud to prevail on his claim of ineffective assistance of counsel, he must satisfy a two-part test. He must show that: (1) his counsel's performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that but for counsel's deficient performance the result of the proceedings would have been different. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; Mott v. State (1989), Ind., 547 N.E.2d 261. Stroud must present strong and convincing evidence to rebut the presumption that counsel was competent. Clark v. State (1990), Ind., 561 N.E.2d 759. Isolated poor strategy, inexperience or bad tactics does not necessarily amount to ineffectiveness. Mott v. State (1989), Ind., 547 N.E.2d 261.

We initially consider Stroud's argument that his counsel was ineffective because he failed to file a motion to suppress or otherwise object to the identification procedure used by the police at the hospital to obtain a positive identification of Stroud. According to Stroud, the evidence surrounding the one-on-one show-up identification either should not have been admitted at trial or should have been suppressed because the show-up was unnecessary and unduly suggestive, and carried with it an overwhelming risk of misidentification.

When an appellant predicates an ineffective assistance of counsel claim on counsel's failure to interpose an objection, the appellant must demonstrate that a proper objection would have been sustained by the trial court. Grigsby v. State (1987), Ind., 503 N.E.2d 394, 396. Additionally, the decision whether or not to file particular motions is one of trial strategy, and, absent an express showing to the contrary, will not indicate ineffective assistance of counsel. Little v. State (1986), Ind., 501 N.E.2d 447, 449.

It is well established that while one-on-one confrontations are inherently suggestive, they are not per se improper. Brafford v. State (1987), Ind., 516 N.E.2d 45, 49. One-on-one confrontations are proper where they occur shortly after the crime has been committed because "[t]he details of the crime would be fresh in the victim's mind and would thus be less likely to give rise to later misidentification." Savage v. State (1988), Ind., 523 N.E.2d 758, 761. Even if a show-up identification should prove to be unnecessarily suggestive, that alone would not require exclusion of the evidence if the identification was reliable under the totality of the circumstances. Lyons v. State (1987), Ind., 506 N.E.2d 813, 815. In evaluating the likelihood of misidentification, the following five factors must be considered:

"(1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of his prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation."

Id.

Here, Stroud has failed to establish that, had his counsel objected to the show-up identification, the objection would have been sustained. To the contrary, the record indicates that under the totality of the circumstances Chapman's identification of Stroud was reliable. Furthermore, Stroud has not expressly demonstrated that counsel's failure to file a motion to suppress indicates ineffective assistance of counsel. Specifically, Stroud has not demonstrated that, but for counsel's failure to file the motion, the result of the proceedings would have been different. According to the record, one of Stroud's victims provided eyewitness testimony at trial that Stroud had been one of his assailants. In addition, Stroud provided to the trial court both a video statement and additional testimony admitting to shooting the victim during the robbery. In contrast to what Stroud argues, counsel's strategic decision not to challenge Stroud's pre-trial identification was inconsequential because identification was not an issue at trial. See Coble v. State (1985), Ind., 476 N.E.2d 102, overruled on other grounds by implication by Gilliam v. State (1987), Ind., 508 N.E.2d 1270, see Hahn v. State (1989), Ind.App., 533 N.E.2d 618; Cf. Glaser v. State (1991), Ind.App., 575 N.E.2d 329 (trial counsel was ineffective for failing to object to admissibility of identification testimony where identification was major issue at trial); Pemberton v....