Tinnin v. State, 284S55
| Decision Date | 03 February 1986 |
| Docket Number | No. 284S55,284S55 |
| Citation | 488 N.E.2d 699 |
| Parties | Steve TINNIN, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender, Melanie C. Conour, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Latriealle Wheat, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant was convicted by a jury of Possession of a Narcotic Drug and found to be an habitual offender. The court imposed a thirty-two (32) year sentence. Appellant's conviction was affirmed in Tinnin v. State (1981), 275 Ind. 203, 416 N.E.2d 116. Appellant's Petition for Post-Conviction Relief was denied by the trial court and this appeal ensued.
The standard of review for appeals from the denial of post-conviction relief is:
Young v. State (1984), Ind., 470 N.E.2d 70, 71.
Appellant asserts he was denied effective assistance of counsel at trial. This Court reviews claims of ineffective counsel under the two-step standard outlined in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. In Richardson v. State (1985), Ind., 476 N.E.2d 497, 501 this Court stated:
(Citations omitted.)
Appellant was arrested on August 1, 1978. Following the appointment and departure of two other public defenders, counsel at issue was appointed on August 1, 1979. Trial was set to commence November 12, 1979. At the post-conviction hearing trial counsel testified that appellant refused to cooperate in the preparation of the defense until one week before trial began.
It is clear from the record that appellant bears a substantial portion of the responsibility for all pretrial errors of omission. His failure to cooperate forced counsel to marshal a defense within very limited time constraints. A defendant who fails to cooperate and then accuses counsel of providing less than professional representation, in areas where cooperation is essential, must bear the burden of the result. Many of the alleged errors of counsel concern the preparation of the defense and not the actual courtroom activity. It is in these areas that this Court will not lose sight of the lack of willingness of the defendant to actively assist counsel.
Appellant asserts counsel was ineffective for failing to seek a jury view of the scene or in the alternative introducing demonstrative evidence depicting the scene. Appellant was charged under the theory of constructive possession of drugs found in a closet within his girl friend's apartment. A police officer testified a confidential informant had provided information that appellant had drugs in his possession while at the apartment of Karen Grundy, one of appellant's female friends. This information was used to obtain a search warrant for the apartment.
At approximately 5:30 p.m., the police began surveillance of Grundy's second story apartment from a vantage point about one block away. They observed a vehicle arrive at the apartment. Two men, neither of whom were appellant, exited the automobile. They both approached the apartment but only one entered. When that man exited the apartment, the two men walked in the direction of their automobile. At that time the police noticed appellant standing on the balcony in front of the apartment. The officer then approached the men and took them into custody prior to appellant reentering the apartment. The officer further testified appellant used a key to unlock the apartment in order for the search to be conducted. Once the officers entered the apartment appellant told them where the drugs could be located. As they left the apartment appellant locked the door with a key.
Appellant testified he was not at the apartment when the surveillance commenced. He stated he arrived at the apartment with the two other men. He now contends that a jury view of the scene or the introduction of photographs of the scene would have established that the officers, from their vantage point, could not have observed the events to which they testified.
At the post-conviction hearing, trial counsel testified he had conducted a personal observation of the scene. Photographs, taken by appellant shortly after his arrest, were introduced to depict the line of sight the officers would have had from their observation point. The post-conviction judge conducted his own view of the scene. From this evidence the post-conviction judge concluded counsel was not ineffective. After reviewing the record, including the photographs, the testimony of counsel and a statement by the trial court on the issue, we find appellant has failed to carry his burden of proof. The record does not support appellant's assertion as to the value of this evidence. Counsel was not ineffective for failing to seek its introduction.
Appellant contends counsel was ineffective as he failed to subpoena certain documents from appellant's parole officer. Both appellant and the officer testified appellant did check in with the officer sometime in the afternoon of the day in question. Appellant testified he was at the office sometime between 2:00 p.m. and 3:30 p.m. Appellant now argues the sign in sheet would have established the time of the visit. The officer testified at the post-conviction hearing that the record would have been available at the time of trial but that it had been destroyed.
Accepting as true appellant's assertion that he was at the office at the latest time, we find the failure to subpoena the document to be of no moment. The fact he was elsewhere two hours prior to the commencement of the surveillance does not establish that he was not in the apartment when the police arrived. We find no lack of effectiveness on the part of counsel for failing to subpoena these records.
Appellant avers trial counsel was ineffective as he failed to subpoena the personal property inventory records prepared at the jail following his arrest. He asserts this record would establish that he did not have a key in his possession at that time. He asserts this evidence would negate the inference that he possessed the capacity to exercise control over the apartment. From the testimony at the post-conviction hearing, this record is no longer in existence.
We find this to be one of those situations in which appellant's failure to cooperate did have a negative impact. The former record does not establish whether this record was available during the time counsel was responsible for the development of trial strategy. However, if it did exist, it would have been circumstantial evidence of some limited value to the jury. Certainly the fact appellant did not have a key at the time of the inventory, does not establish that he did not possess a key at the time of the arrest. Based upon the above considerations, we do not find counsel's failure to act constituted reversible error.
Appellant contends counsel was ineffective for failing to object to a reference to a prior juvenile conviction of appellant. In appellant's direct appeal we held any issue arising...
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