Talley v. State

• Decision Date: 30 November 1982
• Docket Number: No. 3-682A120,3-682A120
• Citation: 442 N.E.2d 721
• Parties: James Edward TALLEY, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
• Court: Indiana Appellate Court

Page 721

442 N.E.2d 721

James Edward TALLEY, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).

No. 3-682A120.

Court of Appeals of Indiana Third District.

Nov. 30, 1982.

Susan K. Carpenter, Public Defender, Joseph Oddo, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Cynthia Sue Stanley, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

James Edward Talley filed a petition for post-conviction relief. The trial court denied his petition and Talley appeals. Four issues are raised on appeal: ¹

(1) Whether Talley received adequate legal representation at trial and on appeal;

(2) Whether Talley was denied a fair trial by prosecutorial misconduct;

(3) Whether the State used perjured testimony against Talley at his trial; and

(4) Whether the jury viewed inadmissible evidence outside the courtroom.

We affirm.

The judge presiding over the hearing on Talley's petition for post-conviction relief made the following findings and conclusions:

"1. That on May 2, 1977 two counts of First Degree Arson were filed against Defendant.

"2. That on December 27, 28, 29 and 30, 1977 a Jury trial was held with a verdict of guilty as to only one count of First Degree Arson.

"3. That Defendant appealed said conviction and the Indiana Court of Appeals official opinion affirming the conviction was received and filed by the Trial Court on June 20, 1980.

"4. That Defendant surrendered on June 26, 1980 and was committed to the Indiana Department of Corrections.

"5. That Defendant filed a Post Conviction Relief Petition on July 2, 1981 and an amendment thereto on November 13, 1981.

"6. That hearing was held on said Post Conviction Relief on January 7, 1982.

"7. That at said hearing the Defendant presented evidence and arguments regarding the allegations of (a) Ineffective assistance of counsel, (b) Perjury of Officer Walda, (c) Prosecutor's misconduct, (d) Presence of inadmissible evidence in or about Courtroom while Jury present, (e) Sufficiency of evidence, (f) Alibi witness, Teri Pace, and (g) Instructions to Jury.

"8. That Court finds items (e), (f) and (g) were covered in the appeal and disposed of therein except as they may relate to the allegation of inadequate counsel.

"9. That in regards to allegation of fire equipment having been in presence of Jury improperly, the Court finds that such evidence was being transported to Court by State's witnesses down the Courthouse hallway at same time Jury was in hallway for recess. That said items were in a box on a cart and were not admitted into evidence at trial. That Defendant testified that Jury could have seen the items although his father's testimony was uncertain whether Jury could have seen same. Court further finds that this evidence was not displayed in front of Jury in open Court and that Defendant has not sustained his burden of proof that the items were ever seen by the Jury or that any prejudice resulted thereby. The Jury was instructed as to what was proper evidence to consider and there is no evidence that the Jury did not comply with this instruction of Court.

"10. That the allegation of Prosecutor's misconduct involved questions on cross-examination that would have been better unasked, the Court does not find said questions to have denied Defendant a fair trial or breached any issue of fundamental fairness of trial.

"11. That the allegation of perjury of Officer Walda is based on his testimony regarding certain undated photographic exhibits versus the testimony of Defendant's father that during Jury deliberations the Officer stated he was not exactly sure when photographs were taken. That such facts do not constitute perjury and record indicates that Defendant adequately cross-examined witness regarding this evidence.

"12. That the allegation of inadequacy of counsel is based on examination of witnesses and Defendant and alleged failure to make certain objections. The Court finds that counsel for Defendant represented Defendant from May 6, 1977 through the appeal process. That Defendant's counsel had practiced law for eleven (11) years prior to trial, five (5) years of which had been almost exclusively in field of criminal law as trial prosecutor and as public defender. That Defendant's counsel had made certain decisions as to strategy which he had discussed with Defendant regarding his defense of this cause. That Defendant's counsel filed and pursued motions for change of Venue and of Judge, for discovery, for suppression of evidence, and in limine prior to trial. That counsel engaged in four (4) days of Jury trial in this cause and pursued to conclusion a full appeal to Court of Appeals. Court finds that counsel presented adequate and above average representation of Defendant in this cause. That Defendant has failed to sustain the burden of showing said defense to be a sham or inadequate."

Because Talley is appealing from the denial of his petition for post-conviction relief, he is in the position of one appealing from a negative judgment. In a post-conviction relief proceeding, the petitioner has the burden of proving his claims by a preponderance of the evidence. The trial court judge is the sole judge of the credibility of witnesses and the weight of the evidence. His determination will be reversed on appeal only if the evidence is not conflicting and leads unerringly to a contrary result. Henson v. State (1982), Ind., 436 N.E.2d 79; Johnson v. State (1980), Ind., 406 N.E.2d 1170.

I. Adequate Legal Representation

Talley contends that his attorney provided inadequate representation both at trial and on appeal. The standard of review of the competency of counsel is whether the proceedings, taken as a whole, were a mockery of justice, and whether the defendant received adequate legal representation. Furthermore, there is strong presumption that counsel was competent and convincing evidence is required to rebut that presumption. Henson v. State (1982), Ind., 436 N.E.2d 79.

In contending that his counsel was incompetent at trial, Talley alleges one pre-trial error and four trial errors. First, Talley asserts that his counsel failed to file a notice of alibi prior to trial. Consequently, Terri Pace, an alibi witness, was not allowed to testify in Talley's behalf. The trial record shows that defense counsel called Ms. Pace to the stand and she answered questions regarding Talley's activities on the day of the fires. The State then moved to strike her testimony on the grounds that no alibi notice had been filed. The motion was granted. At the evidentiary hearing on the petition, Talley's trial counsel testified that he had interviewed Ms. Pace prior to trial and decided not to file a notice of alibi because she said that Talley left her prior to the time the fire was set. The trial court's subsequent ruling that Ms. Pace was an alibi witness does not render counsel's judgment incompetent. We will not use hindsight or second-guess strategic or tactical decisions in determining whether counsel was competent. Adams v. State (1982), Ind., 430 N.E.2d 771.

Talley also claims that his attorney was incompetent because he failed to object to testimony regarding other fires. At the evidentiary hearing, Talley's trial counsel testified that he allowed the State to introduce evidence of other fires as part of his defense strategy. Decisions made by trial counsel as to strategy and tactics may not show incompetency of counsel despite the fact, in retrospect, those decisions may appear incorrect or may have hurt the defense. Morris v. State (1980), Ind., 409 N.E.2d 608; Jackson v. State (1975), 264 Ind. 54, 339 N.E.2d 557. Likewise, the errors Talley alleges in counsel's failure to prevent the admission of evidence regarding firefighting equipment found in Talley's house, counsel's cross-examination of witnesses and counsel's direct examination of Talley are strategic or tactical decisions which we will not second-guess.

Finally, Talley alleges that his counsel was incompetent because he failed to move for a mistrial after several instances of prosecutorial misconduct. Not only could such an omission be considered a tactical decision, but we find, infra, that the prosecutor was not guilty of such misconduct as would require a new trial; therefore Talley was not prejudiced by his attorney's failure to object.

The record contains evidence to support the trial court's determination. Talley's privately-retained counsel filed pre-trial motions, prepared for trial, cross-examined the State's witnesses and called and examined six defense witnesses, including Talley himself. In addition, counsel consulted with Talley about his defense. ²

Talley alleges two errors which he claims constitute incompetent counsel on appeal. First, he argues that counsel failed to properly preserve any error regarding Instruction No. 2 by failing to object at trial. Failure to raise an issue on appeal does not, alone, demonstrate incompetent counsel. See Kidwell v. State (1973), 260 Ind. 303, 295 N.E.2d 362. Counsel filed a timely appeal and presented this Court with a timely brief setting forth and arguing several issues. We will not second-guess the strategic decisions made either at trial or on appeal. Greer v. State (1975), 262 Ind. 622, 321 N.E.2d 842.

Second, Talley alleges that counsel failed to properly raise his objection to Instruction No. 3. This Court considered Instruction No. 3 on appeal, so the alleged failure to raise the issue properly does not prove that counsel was incompetent.

There was evidence to support the trial court's determination that Talley's counsel provided competent representation both at trial and on appeal. Therefore, we will not overturn that determination. ³

II. Prosecutorial Misconduct

Talley raises four specific instances in which he contends prosecutorial misconduct denied him a fair trial. ⁴ Conduct by the prosecutor requires that a conviction be reversed if, first, ...