Van Evey v. State

• Decision Date: 06 November 1986
• Docket Number: No. 1084S391,1084S391
• Parties: Ricky VAN EVEY, Jr., Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 245

499 N.E.2d 245

Ricky VAN EVEY, Jr., Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1084S391.

Supreme Court of Indiana.

Nov. 6, 1986.

Susan K. Carpenter, Public Defender, Bev Cummings, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

DICKSON, Justice.

Petitioner-appellant, Ricky Van Evey, Jr., is before this Court appealing from the denial of his petition for post-conviction relief. He was charged and convicted by a jury for robbery, a class A felony (Ind.Code Sec. 35-42-5-1), and sentenced to twenty (20) years imprisonment. His conviction was affirmed on direct appeal in Evey v. State (1981), 275 Ind. 674, 419 N.E.2d 971. Petitioner raises three issues in this appeal:

1. the trial court's failure to give a jury instruction sua sponte regarding effect of defendant's failure to testify;

2. ineffective assistance of counsel; and,

3. improper waiver of objections to extradition.

The facts relevant to this appeal are as follows. Petitioner, when seventeen years of age, was arrested in Coldwater, Michigan, and charged with a robbery which occurred on January 15, 1980, in Fort Wayne, Allen County, Indiana. While detained in Coldwater, he waived objections to extradition and was returned to Allen County. Petitioner, by counsel, waived arraignment and pled not guilty. Petitioner did not testify at trial and defense counsel did not call any witnesses on his behalf. Defense counsel did not request, nor did the trial court give, a jury instruction requiring the jury not to draw a negative inference from a defendant's failure to testify.

On this appeal from the denial of post-conviction relief, the State asserts that petitioner has waived a post-conviction remedy because it is predicated on arguments available but not raised in his original appeal. See, e.g., Bailey v. State (1985), Ind., 472 N.E.2d 1260. Despite the apparent applicability of that general rule in this case, the State is precluded from now asserting the waiver defense for the first time in this appeal. When the State chooses to meet a petitioner's allegations on their merits at the post-conviction hearing, as in this case, the reviewing court must do likewise on appeal. Brown v. State (1974), 261 Ind. 619, 308 N.E.2d 699; Langley v. State (1971), 256 Ind. 199, 267 N.E.2d 538.

ISSUE I

Petitioner contends that the trial court erred by failing to give a jury instruction, sua sponte, pursuant to Ind.Code Sec. 35-1-31-3 [Acts 1905, ch. 169, Sec. 235, p. 584 (Repealed 1981) ]. This code section provided, in relevant part, as follows:

But if the defendant does not testify, his failure to do so shall not be commented upon or referred to in the argument of the cause, nor commented Petitioner argues that the emphasized language of the statute required the trial court to instruct the jury that it may not draw a negative inference from an accused's failure to testify. Petitioner contends that this requirement existed despite his failure to request the instruction.

upon, referred to, or in any manner considered by the jury trying the same; and it shall be the duty of the court, in such case, in its charge, to instruct the jury as to their duty under the provisions of this section. (Emphasis added)

In Indiana, the choice of whether or not the trial court instructs the jury on a defendant's failure to testify belongs to the defendant. Parker v. State (1981), Ind., 425 N.E.2d 628. Despite the seemingly mandatory language of Ind.Code Sec. 35-1-31-3, this Court has consistently held that a defendant must request the instruction to preserve error on this specific issue. Parker v. State, supra; Hunt v. State (1973), 260 Ind. 375, 296 N.E.2d 116. We decline to reinterpret this former statute.

ISSUE II

Petitioner claims the post-conviction court erred upon finding he was not denied effective assistance of counsel and argues that the following acts rendered his attorney's assistance ineffective at trial:

1. Counsel failed to request a jury instruction regarding petitioner's failure to testify;

2. Counsel failed to investigate defenses and call witnesses who petitioner believed were important to his defense; and,

3. Counsel refused to let petitioner testify on his own behalf and threatened to "walk out" if petitioner did testify.

Reversal for ineffective assistance of counsel is appropriate in cases where a defendant shows both (a) deficient performance by counsel, and (b) resulting prejudice from errors of counsel so serious as to deprive the defendant of a trial whose result is reliable. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. A claim of ineffective assistance must identify the claimed errors of counsel, so that the court may determine whether, in light of all circumstances, the counsel's actions were outside the range of professionally competent assistance. The proper measure of attorney performance is reasonableness under prevailing professional norms. It shall be strongly presumed that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Judicial scrutiny of counsel's performance is highly deferential and should not be exercised through the distortions of hindsight. Isolated poor strategy, inexperience, or bad tactics do not necessarily amount to ineffectiveness of counsel. Strickland, supra; Burr v. State (1986), Ind., 492 N.E.2d 306; Price v. State (1985), Ind., 482 N.E.2d 719; Jackson v. State (1985), Ind., 483 N.E.2d 1374; Seaton v. State (1985), Ind., 478 N.E.2d 51.

Although defense counsel did not request a final instruction regarding the petitioner's failure to testify, we note that defense counsel may have considered that the giving of a "no adverse inference" instruction might have drawn undue emphasis on the fact that petitioner did not testify. In any event, this Court will not speculate on what may have been the most advantageous strategy in a particular case. Young v. State (1985), Ind., 482 N.E.2d 246. The decision of whether to request the additional instruction was strictly a matter involving counsel's professional judgment in formulating trial strategy. His decision in this case cannot be viewed as constituting ineffective assistance.

In support of petitioner's second premise for showing ineffective assistance of counsel, petitioner boldly alleges that trial counsel "could have presented evidence which raised a 'reasonable probability ... that the fact-finder would have had reasonable doubt respecting guilt.' Strickland v. Washington, supra, 104 S.Ct. at 2069." We recognize that if defense counsel Petitioner's third premise for his ineffective assistance of counsel claim is similarly without merit. Defense counsel cross-examined all witnesses called by the State and then rested immediately after the conclusion of the State's case-in-chief. Petitioner's allegations that defense counsel refused to let him testify, and threatened to "walk out" if petitioner testified, are serious accusations. However, we have no testimony from petitioner's trial counsel as to these alleged discussions and decisions made during petitioner's trial. We have held:

fails to produce any evidence at all from available sources in support of a defense, representation may be deemed inadequate or ineffective. Petitioner, however, has failed to present sufficient evidence from which the post-conviction court could infer that defense counsel made an inadequate investigation of possible defenses or that the circumstances disclosed to counsel warranted investigation. Moreover, at the post-conviction hearing, petitioner failed to disclose the identity of a single witness whose knowledge would have benefited him, nor did he disclose what information defense counsel could have elicited had he called those witnesses. For purposes of determining competency of counsel, the choice of defenses and witnesses for trial are matters of trial strategy.

Finally, in cases such as this where no effort was made to produce either the testimony of the trial counsel or counsel's affidavit, the court at a post-conviction hearing may infer that the counsel would not have corroborated defendant's allegations of incompetency. Vernor v. State, (1975) 166 Ind.App. 363, 336 N.E.2d 415, 417.

Lenoir v. State (1977), 267 Ind. 212, 214, 368 N.E.2d 1356, 1358. See also Cochran v. State (1983), Ind., 445 N.E.2d 974, 976. It was within the discretion of the post-conviction court to conclude that the defendant's testimony was here insufficient to overcome the presumption of his attorney's competency.

ISSUE III

Defendant was arrested and detained in Coldwater, Michigan, pursuant to an Indiana arrest warrant. He now contends that he was denied meaningful consultation with his parents before submitting to police questioning and voluntarily waiving objections to...