Sutton v. State

• Decision Date: 15 February 2021
• Docket Number: Court of Appeals Case No. 20A-PC-576
• Parties: Christopher M. SUTTON, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

167 N.E.3d 691 (Table)

Christopher M. SUTTON, Appellant-Petitioner,

v.STATE of Indiana, Appellee-Respondent.

Court of Appeals Case No. 20A-PC-576

Court of Appeals of Indiana.

FILED February 15, 2021

Appellant Pro Se: Christopher M. Sutton, Michigan City, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Ian McLean, Supervising Deputy Attorney General, Indianapolis, Indiana

MEMORANDUM DECISION

Baker, Senior Judge.

Statement of the Case

[1] Christopher M. Sutton appeals the denial of his petition for post-conviction relief. We affirm.

Issues

[2] Sutton raises five issues, which we consolidate and restate as:

I. Whether the post-conviction court erred in rejecting his claim of ineffective assistance of trial counsel.

II. Whether the post-conviction court erred in rejecting his claim of ineffective assistance of appellate counsel.

Facts and Procedural History

[3] The facts of Sutton's case are as follows:

Seven-year-old Z.H. lived with her mother S.C[.], her three-year old brother, and thirty-two-year-old Sutton. S.C. and Sutton had lived together for "about 2, 2 years," and Z.H. called Sutton "daddy." On July 8, 2008, Z.H. and her brother were in bed with S.C. and Sutton. Z.H. had an issue with wetting herself at night and wore a pull-up diaper. S.C[.], who is a sound sleeper, did not hear Sutton leave the next morning.

S.C. woke up around 7:00 a.m., and Z.H. was already awake. Z.H. went into the bathroom and her mother told her to take off her clothes so that she could take a bath. Z.H. told S.C. that her vagina hurt. S.C. told Z.H. that she "probably peed [her] pants, um go ahead and take your clothes off you'll be fine," and Z.H. stated "no mom my vagina hurts because ... daddy stuck his penis in my vagina."

Without talking to Z.H. about what had happened, S.C. called her mother. S.C.’s mother and sister arrived, and her sister called the police. Later that day, Danielle Goewert of the Fort Wayne Child Advocacy Center interviewed Z.H. and the interview was recorded. Z.H. informed Goewert that Sutton put his penis in her vagina the previous night. Z.H. stated that Sutton was asleep because his eyes were closed. Z.H. stated that Sutton's penis touched her pull-up diaper and that her pull-up diaper went into her vagina. Z.H. also stated that her brother once smacked her in her vagina.

After her interview, Z.H. was examined at the Fort Wayne Sexual Assault Treatment Center by Sharon [Robison], the chief administrative officer and a sexual assault nurse examiner. [Robison] asked Z.H. what had happened to her, and Z.H. stated that her "daddy put his penis inside [her] vagina and that he pushed [her] pull up inside with his penis ...." [Robison] observed Z.H.’s "internal female sex organ" and "her labia minera," which she described as "beefy regnant" or "beefy like in red meat, so it's really dark red ...." [Robison] also observed petechiae

, which is "pin point bruising," on Z.H.’s labia minera and above her urethra.

When Sutton arrived home, Berne Police Detective James Newbold identified himself to Sutton and asked him if he would come to the police department with him. Sutton said that he would and asked if he was going to jail. During the interview, Detective Newbold told Sutton that the interview related to the fact that Z.H. had told her mother that her vagina hurt. Sutton stated that Z.H. had complained about her vagina hurting for probably the last year. Detective Newbold asked Sutton if there was a particular reason why Z.H.’s vagina would be hurting, and Sutton stated that over the weekend Z.H. complained that she had been hurt on the "swings or something," but Z.H.’s aunt checked her and determined that she was only scratched. Sutton denied placing his penis in Z.H.’s vagina. When asked why Z.H. would say that he had placed his penis in her vagina, Sutton stated that he is erect in the mornings and that he must roll over Z.H. to exit the bed but that his penis did not touch her. Sutton also indicated that he attempts to be sure that he is "clear" of the children and is "careful" because he knows the children are usually in the bed.

At one point during the interview, Detective Newbold asked Sutton if there was any reason why a pubic hair would be found inside of Z.H.’s vagina, and Sutton stated that he was bald because he shaves his pubic area. Detective Newbold indicated that he was not sure whether pubic hairs were found or not, and Sutton indicated that it would not matter because he shaves. At some point during the interview, Sutton pulled his pants down to show Detective Newbold his pubic area, and Detective Newbold observed that Sutton had pubic hair of "maybe a half inch to three quarters" in length.

Sutton v. State , No. 01A05-100-CR-75, *1-2 (Ind. Ct. App. Dec. 21, 2010) (record citations omitted), trans. denied.

[4] The State charged Sutton with child molesting, a Class A felony. Z.H. did not testify at trial. Instead, the trial court admitted into evidence: (1) a video recording of her interview with Goewert; and (2) a recording of her testimony from a pre-trial protected person hearing. In addition, S.C. and Nurse Robison relayed to the jury what Z.H. had told them. Sutton testified on his own behalf, denying that he had molested Z.H. The jury determined Sutton was guilty as charged. Sutton appealed, claiming the trial court erred in accepting certain exhibits as evidence. A panel of this Court affirmed the trial court's judgment. Id. at *12.

[5] Next, Sutton filed a petition for post-conviction relief. He served non-party requests for production of documents on the State, seeking access to records from Z.H.’s medical care providers. The State objected to Sutton's discovery requests, and the post-conviction court sustained the objection. Sutton sought interlocutory review. A panel of the Court accepted the appeal and affirmed the post-conviction court's judgment. Sutton v. State , No. 01A05-1507-PC-882 (Ind. Ct. App. March 14, 2016), trans. denied.

[6] On remand, Sutton filed an amended petition. The post-conviction court held an evidentiary hearing, during which Sutton's appellate counsel testified.¹ The post-conviction court denied Sutton's amended petition, and this appeal followed.

Discussion and Decision

Standard of Review

[7] "Post-conviction proceedings do not provide criminal defendants with a ‘super-appeal.’ " Garrett v. State , 992 N.E.2d 710, 718 (Ind. 2013). Rather, they provide a narrow remedy to raise issues that were not known at the time of the original trial or were unavailable on direct appeal. Id. Issues available but not raised on direct appeal are waived, while issues litigated adversely to the defendant on direct appeal are res judicata.² Pruitt v. State , 903 N.E.2d 899, 905 (Ind. 2009).

[8] A petitioner who has been denied post-conviction relief appeals from a negative judgment. Saunders v. State , 794 N.E.2d 523, 526 (Ind. Ct. App. 2003). A post-conviction court's denial of relief will be affirmed unless the petitioner shows that the evidence leads unerringly and unmistakably to a decision opposite to that reached by the post-conviction court. Id. We review the post-conviction court's factual findings for clear error but do not defer to its conclusions of law. Wilkes v. State , 984 N.E.2d 1236, 1240 (Ind. 2013). We will not reweigh the evidence or judge the credibility of the witnesses. Hinesley v. State , 999 N.E.2d 975, 981 (Ind. Ct. App. 2013), trans. denied.

Assistance of Trial Counsel

[9] Sutton argues the post-conviction court erred in rejecting his claims of ineffective assistance of trial counsel. He further argues his trial counsel erred in failing to object to certain evidence, in failing to object to alleged prosecutorial misconduct, and in failing to argue that the case should have been dismissed for lack of valid evidence. In considering claims of ineffective assistance, we have stated:

We evaluate claims of ineffective assistance under the two-part test originally set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A petitioner must demonstrate that his or her counsel performed deficiently, resulting in prejudice. Counsel renders deficient performance when his or her representation fails to meet an objective standard of reasonableness. Prejudice exists when a petitioner demonstrates that, if not for counsel's deficient performance, there is a reasonable probability that the result would have been different. A petitioner must prove both parts of the test, and failure to do so will cause the claim to fail.

We strongly presume counsel provided adequate assistance and exercised reasonable professional judgment in all significant decisions. Counsel's conduct is assessed based on facts known at the time and not through hindsight. Where, as here, a claim of ineffective assistance is based on counsel's failure to object, the petitioner must demonstrate that if an objection had been made, the trial court would have had no choice but to sustain it.

Cole v. State , 61 N.E.3d 384, 387 (Ind. Ct. App. 2016) (citations omitted), trans. denied.

A. Admission of Evidence

[10] Sutton claims his trial counsel should have objected to the admission of several witnesses’ testimony, and that if counsel had done so, the evidence would have been excluded, undermining the State's case. Specifically, he argues that the testimony that counsel should have challenged was unfairly prejudicial, impermissible hearsay, or improperly vouched for Z.H.’s truthfulness.

[11] Starting with the question of unfair prejudice, Indiana Evidence Rule 403 provides: "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." All evidence that is relevant to a criminal prosecution is inherently prejudicial. Fuentes v. State , 10 N.E.3d 68, 73 (Ind. Ct. App. 2014), ...