Terry v. State, No. 49A02-0512-PC-1127.

• Docket Nº: No. 49A02-0512-PC-1127.
• Citation: 857 N.E.2d 396
• Case Date: November 27, 2006
• Court: Court of Appeals of Indiana

Page 396

857 N.E.2d 396 Gregory TERRY, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff. No. 49A02-0512-PC-1127. Court of Appeals of Indiana. November 27, 2006.

Page 397

COPYRIGHT MATERIAL OMITTED

Page 398

COPYRIGHT MATERIAL OMITTED

Page 399

COPYRIGHT MATERIAL OMITTED

Page 400

Vickie Vaser, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Kelly A. Miklos, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.

Case Summary

Gregory Terry appeals his convictions of dealing cocaine, a Class B felony, possession of cocaine, a Class D felony, and knowing flight from a law enforcement officer, a Class A misdemeanor, following a jury trial, and the post-conviction court's denial of his petition for post-conviction relief.¹ Concluding that Terry received effective assistance of counsel, that his due process rights were not violated by the State's destruction of evidence, that the trial court's instruction was proper, and that any error in the admission of identification evidence was harmless, we affirm.

Issues

In this appeal, Terry raises four issues, which we restate as follows:

(1) Whether Terry received effective assistance of counsel;

(2) Whether Terry's due process rights were violated when the State destroyed evidence following Terry's trial;

(3) Whether the trial court properly instructed the jury on the State's burden of proof; and

(4) Whether the trial court properly admitted identification evidence.

Facts and Procedural History

On April 6, 2004, Indianapolis Police Department ("IPD") Officers Bryant Allen and Christina Slack were on the east side of the city in an unmarked vehicle attempting to make an undercover narcotics purchase. Officers Karla Baldini and Richard Weaver were following Officers Allen and Slack in another unmarked vehicle. From their vehicle, Officers Allen and Slack observed a man later identified as Terry walking on the sidewalk. The Officers motioned Terry over to their vehicle and asked him if he had any crack-cocaine for sale. Terry responded that he did, and after a brief conversation, gave the officers what was later determined to be a quarter gram of cocaine in exchange for a twenty-dollar bill previously marked by Officer Weaver. As Terry walked away from the vehicle, he passed Officers Weaver and Baldini's vehicle.

Page 401

Officers Slack and Allen radioed to uniformed officers in the area that the transaction was complete and instructed them to apprehend Terry. Officers Michael Roach, Matt Jennings, and Shawn Looper then arrived on the scene. Upon seeing Officer Looper, Terry ran between two houses and through an alley. Officer Looper chased Terry, identifying himself as a police officer and instructing Terry to stop. During the chase, Officer Looper observed Terry throw down what appeared to be a wad of money. The Officers were ultimately unable to apprehend Terry. During a search of the neighborhood, Officer Roach discovered a pager in the area between the two houses where Terry had run from Officer Looper. Officers also found the money used to purchase the cocaine.

Later that day, Officer Baldini called several numbers that appeared on the pager, pretending to be a citizen attempting to return the pager to its owner. One individual stated that the only person whom he paged from the number identified by Officer Baldini was his brother, Gregory Terry.² Officer Baldini then located a picture of Terry in IPD records, and recognized him as the man who had sold Officers Slack and Allen cocaine earlier that day. Officer Baldini showed Terry's picture to the other officers involved, and each officer likewise identified Terry.

On April 15, 2004, the State filed charges against Terry. Terry had his initial hearing on May 5, 2004. Todd Woodmansee entered his appearance as Terry's public defender on May 12, 2004, but on June 11, 2004, Karen Huelskamp entered her appearance replacing Woodmansee. On June 30, 2004, Terry filed an Affidavit in Support of the Belated Notice of Alibi, which the trial court granted the same day. On July 1, 2004, Terry filed his Notice of Alibi Defense and a Motion to Produce Evidence, specifically requesting "[t]he names and phone numbers of people contacted to verify that the pager belonged to Gregory Terry" and "[t]he business records from the service provider on the pager stating who the owner of the pager was." Appellant's Appendix at 30. Attorney Huelskamp filed this motion because Terry claimed he did not own the pager, and therefore, she wanted to determine the scope of the investigation the police had conducted regarding the pager.

On August 4, 2004, Terry requested a speedy trial, which the trial court scheduled for October 4, 2004. The State responded to Terry's discovery request approximately two weeks before trial, indicating it had conducted no investigation beyond the phone calls to determine the pager's ownership. The State explained that the delay in response to discovery was due to the prosecutor being out of town for approximately four weeks. On September 24, 2004, Terry filed a Motion to Suppress the Officers' pre-trial and in-court identifications of Terry. Attorney Huelskamp told the trial court that although she did not receive timely discovery from the State, she chose to file a motion to suppress rather than a motion to exclude, in part because of the imminent speedy trial date. After a hearing, the trial court denied Terry's motion to suppress.

At the October 4 trial, Officers Baldini, Allen, Slack, and Weaver testified for the State and identified Terry as the man who

Page 402

had sold Officers Allen and Slack cocaine.³ Evidence regarding the pager was also introduced. Attorney Huelskamp testified at the post-conviction hearing that she did not object to anything involving the pager so that she could demonstrate, on cross-examination, the poor quality of the investigation. She also testified that she did not request a limiting instruction as to the hearsay statement of the unknown man identifying Terry as his brother because she didn't want to limit the scope of her cross-examination relating to the pager. Terry's sister testified for the defense, stating that Terry had been at her apartment for a barbeque the entire afternoon. In its closing argument, the State commented on Terry's alibi defense, stating "[t]here's fifteen to twenty people there [at the barbeque] and where are they today, why aren't any of those other individuals here to corroborate that story." Trial Transcript at 166. The State also said that "the law states it is permissible for the officers just to see one photo [;] it is not required that they see an entire photo array." Id. at 167. Attorney Huelskamp did not object to either statement.

The jury found Terry guilty of all charges after his trial on October 4. On November 5, 2004, the trial court sentenced Terry to an aggregate sentence of twelve years. Terry filed his notice of appeal on November 30, 2004. Upon petition by Terry, this court terminated his direct appeal on March 28, 2005, and remanded to the trial court with instructions to conduct post-conviction proceedings.

Terry then filed a Petition for Post-Conviction Relief alleging, among other things, ineffective assistance of counsel. At the post-conviction hearing, Terry requested that the post-conviction court deem his petition amended to conform to the evidence that two days after trial, Officer Baldini instructed IPD's property branch to schedule the pager for disposal, and that the pager was destroyed roughly two and one-half months later. The post-conviction court granted this request. Both parties submitted suggested findings of fact and conclusions of law. The post-conviction court adopted the State's findings, and denied Terry's Petition for Post-Conviction Relief. Terry now appeals.

Discussion and Decision I. Ineffective Assistance of Counsel

Terry appeals the post-conviction court's denial of his petition, arguing that the post-conviction court should have granted his petition because he received ineffective assistance of counsel at his trial.

A. Standard of Review

Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 745 (Ind.2002), cert. denied, 540 U.S. 830, 124 S.Ct. 69, 157 L.Ed.2d 56 (2003). Therefore, to prevail, petitioners must establish their claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Stevens, 770 N.E.2d at 745. On appeal from a denial of a petition for post-conviction relief, petitioners must convince this court that the evidence, taken as a whole, leads unmistakably to a conclusion opposite that reached by the post-conviction court. Id.

When reviewing ineffective assistance of counsel claims, Indiana courts use the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Wentz v. State, 766 N.E.2d 351, 360 (Ind.2002). Under the first prong, the petitioner must

Page 403

establish that counsel's performance was deficient; that is, the performance fell below an objective standard of reasonableness, thereby denying the petitioner the right to counsel as guaranteed by the Sixth Amendment to the United States Constitution. Smith v. State, 765 N.E.2d 578, 585 (Ind.2002). We presume that counsel provided adequate assistance and defer to counsel's strategic and tactical decisions. Id. at 585. "Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective." Douglas v. State, 800 N.E.2d 599, 607 (Ind.Ct.App.2003), trans. denied. Under the second prong, the petitioner must demonstrate prejudice; that is, petitioner must demonstrate a reasonable probability that the result of the trial would have been different if counsel had not made the errors. Wentz, 766 N.E.2d at 360. If our confidence that the result would have been the same is undermined, we...