Tyra v. State, 79A02-9006-PC-351
| Citation | 574 N.E.2d 918 |
| Decision Date | 09 July 1991 |
| Docket Number | No. 79A02-9006-PC-351,79A02-9006-PC-351 |
| Parties | Gregory TYRA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. 1 |
| Court | Indiana Appellate Court |
Steven Knecht, Lafayette, for appellant-defendant.
Linley E. Pearson, Atty. Gen., Geoff Davis, Deputy Atty. Gen., Office of Attorney General, Indianapolis, for appellee-plaintiff.
Appellant Gregory Tyra's petition for post-conviction relief was denied following an evidentiary hearing. His convictions for arson, burglary and theft were upheld on direct appeal in Tyra v. State (1987), Ind., 506 N.E.2d 1100. The sole issue raised is whether Tyra received effective assistance of trial and appellate counsel. We find that he did and affirm.
The home of Oliver and Virginia Foxworthy caught fire in the early morning hours of New Year's Day. Upon investigation, it became apparent that the house had been ransacked prior to the fire and that the fire resulted from arson. Investigators found blood inside the house. While investigating the crime, Detective Stonebraker observed Gregory Tyra and his brother, Kenneth, walking down the street in the vicinity of the Foxworthy home. Stonebraker knew Tyra and Kenneth did not live in the neighborhood and also noticed that Kenneth had a bandage on one hand. Stonebraker stopped the two and asked for identification and an explanation for their presence in the area. They replied that they were looking for snow shoveling jobs. Stonebraker asked them to empty their pockets, but also informed them that they did not have to comply. They declined his invitation to empty their pockets. Stonebraker then informed them that he would conduct a pat down search before continuing the conversation. At that time, Tyra told Stonebraker that he possessed a starter's pistol and slowly removed the pistol and handed it to Stonebraker. Stonebraker proceeded to search Tyra's pockets and removed a watch and a lapel pin. Kenneth voluntarily emptied his pockets at that time. Stonebraker noted the items found on the brothers and returned them. He then contacted the Foxworthys who were on vacation. They expressed their belief that the items found in the possession of the Tyras were their belongings. Based on this information, the Tyra brothers were arrested. Kenneth initially took full responsibility for the break-in but denied any knowledge of the arson. He later implicated Tyra as his accomplice but still claimed to have no personal knowledge of the arson. Kenneth and the prosecutor negotiated a plea agreement that was later rejected by the prosecutor when Kenneth failed to pass a polygraph test on the arson. Kenneth testified against Tyra at trial without a plea agreement but with use immunity. Other facts will be supplied as needed.
Tyra alleges that his trial counsel provided ineffective assistance by failure to file a motion for pre-trial discovery, failure to depose witnesses, failure to consult, failure to properly impeach Kenneth Tyra, failure to challenge the stop and search, failure to object when the judge permitted the jury to deliberate without first instructing the alternate not to participate, failure to object to irrelevant and prejudicial testimony and failure to include issues in the motion to correct error. Appellate counsel is alleged to have been ineffective for failing to raise on direct appeal the issues omitted by trial counsel.
When a claim of ineffective assistance of counsel is raised, we look to the following:
A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Judicial scrutiny of ineffective assistance claims should be deferential and undistorted by hindsight, with "[i]solated poor strategy, inexperience, or bad tactics" not implying ineffectiveness. Burr v. State (1986), Ind., 492 N.E.2d 306. To prevail, the appellant must show that counsel committed particular, unreasonable errors, resulting in prejudice, such that, but for those errors, it is reasonably probable that the proceeding would have resulted differently. Id. Since this is a post-conviction proceeding, the defendant bears the burden of proof by a preponderance of the evidence. We will reverse the decision of the trier of fact only where the evidence is without conflict and leads to but one conclusion and that conclusion is contrary to the one reached by the trier of fact. Sims v. State (1989), Ind.App., 547 N.E.2d 895, 896, trans. denied.
defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the convictions or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Tyra asserts that his trial counsel was ineffective because he failed to file a motion for pre-trial discovery. At the post-conviction hearing counsel testified that the prosecutor allowed him free access to the entire file compiled by the State of Indiana and therefore a motion was unnecessary. Nothing would have been gained by filing a discovery motion and consequently counsel was not ineffective for failure to formally request discovery.
The second allegation of ineffectiveness is counsel's failure to depose witnesses. In response, trial counsel testified that he had access to all witness statements, including two made by Kenneth, contained in the prosecutor's file. Tyra argues that had the witnesses been deposed, counsel could have impeached them. However, he fails to point out any specific impeachable responses made at trial which could have been contradicted by deposing the witnesses and therefore has established no error.
Failure to fully confer and discuss the defense with Tyra is the third allegation of pre-trial ineffectiveness. Trial counsel testified he consulted with Tyra on several occasions, both in person and via telephone. In contrast, Tyra testified he only talked with his attorney a few times. It is submitted that, had he discussed the case with counsel and been presented with the information in the State's file and depositions of all the witnesses, he would have realized the strength of the case against him and entered a plea agreement. In order to establish prejudice in this manner, Tyra must point out specific evidence of which he was unaware as a result of the lack of sufficient consultation. This he has not done. Therefore, we find no prejudice in his decision to reject the guilty plea. Hollon v. State (1980), 272 Ind. 439, 398 N.E.2d 1273, 1278. Coker v. State (1986), Ind., 499 N.E.2d 1135, 1138.
(a) Tyra informed his trial counsel that his brother Kenneth served a prison sentence as a result of a conviction in Fountain County. Either trial counsel or his intern called Fountain County in an attempt to identify that conviction, but were informed that no such conviction existed. At the post-conviction hearing, Tyra produced a copy of the commitment.
The prosecutor, while questioning Kenneth on the terms of the aborted plea While this exchange certainly implies that Kenneth had a clean record, it also indicates that the prosecutor was ignorant of Kenneth's prior conviction. Trial counsel attempted to determine whether Kenneth had been convicted of an impeachable offense but received erroneous information from the court clerk that the conviction did not exist. He had access to the prosecutor's files, and from the exchange quoted above, it appears the prosecution was also unaware of Kenneth's earlier run-in with the law. Counsel made a reasonable, good-faith attempt to confirm Tyra's account of Kenneth's criminal record. His failure to locate the information does not amount to ineffectiveness.
agreement, asked "[b]ecause you have no prior convictions on the record, you could get a suspended sentence, couldn't you?" Tyra refers us to this point in the record for the proposition that "Kenneth Tyra's statement that he had no prior conviction on his record went unchallenged."
(b) Trial counsel did not bring to the jury's attention the discrepancy between Kenneth's statement that Tyra told him there was a motorcycle in the garage (and therefore Tyra must have entered the garage where gasoline was stored) and the Foxworthy's insurance claim which did not list a motorcycle. In response to questioning at the post-conviction hearing, counsel testified that he didn't recall if he ever checked with the Foxworthy's insurance company to determine whether they made a claim for loss of a motorcycle.
Counsel also did not impeach Kenneth with eight inconsistencies between Kenneth's two pre-trial statements. When asked about his failure to employ this method of impeachment, counsel responded that, although he didn't specifically recall, it was likely that he chose not to point out every discrepancy in the statements because the statements were very damaging to his client and he didn't want to unduly emphasize them.
Decisions such as whether to check on the motorcycle or whether to point out each discrepancy in the statements are tactical in nature and while in hindsight might appear to be poor decisions, are nevertheless entitled to deferential treatment. As our supreme court pointed out, "[i]f every mistake or oversight made in the preparation of a case or at trial, perceived in the leisure of retrospection, should...
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